The Ontario Superior Court of Justice Court’s Decision in Doe 464533 v N.D., 2016 ONSC 541
The plaintiff Jane Doe 464533 (the “plaintiff”) and the defendant N.D. (the “defendant”) were high school sweethearts. The plaintiff brought a civil action against the defendant after the defendant posted an explicit video of the plaintiff online, which he had assured the plaintiff he would keep private. The defendant also showed the video to several of his friends from the parties’ home town. The video was removed from the website after three (3) weeks. It was undisputed however that there was no way to know how many times the video was viewed or downloaded.
The plaintiff suffered sever and long-lasting consequences of the defendant’s action. The plaintiff was physically and mentally distraught after becoming aware of the online posting of the video. In the plaintiff’s words, she “had no emotion or life.” In her words, she “felt like a very cold person and felt like everything in my life and all of my beliefs and morals had been stolen from me.” (para 12). The plaintiff also suffered from serious depression and panic attacks as a result of the incident.
Does a tort of public disclosure of private facts exist?
ONTARIO SUPERIOR COURT OF JUSTICE COURT’S DECISION
The Court found that there is a tort of public disclosure of private facts. In making this determination, the Court first noted that there was no statutory provision except in the province of Manitoba which deals with non-consensual distribution of intimate images, leaving the legal question of the availability of a common law civil remedy for victims of such conduct.
Next and in consideration of Grant v. Winnipeg Regional Health Authority  M.J. No. 116 (C.A.), the Court outlined the elements of a claim for breach of confidence as follows (para 21):
- The information must have the necessary quality of confidence about it;
- The information must have been imparted in circumstances importing an obligation of confidence; and
- There must be unauthorized use of that information to the detriment of the party communicating it.
In assessing the invasion of privacy issue, the Court, found that “[o]ne who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.” (para 41)
Due to the lack case law in the area, the Court in determining their calculus for damages of the offence to the plaintiff’s dignity and autonomy turned to similar cases of sexual battery, and awarded $50,000 to the plaintiff. Such an award was given to “demonstrate, both to the victim and to the wider community, the vindication of these fundamental, although intangible, rights which have been violated by the wrongdoer.” (para 56). The Court further awarded the plaintiff $25,000 in aggravated damages because of the aggravated manner in which the defendant violated the plaintiff’s trust and privacy by posting the video and showing it to his friends after promising he would not reveal it to anyone else. The Court also found a $25,000 award for punitive damages was also warranted for the arrogant fashion and reckless disregard of the defendant who gave no consideration to the impact of his actions, showed no remorse and gave no indication of a forthcoming apology. The Court also emphasized the need to consider deterrence of such harmful conduct.
Although the above case is not one within the employment law context, the establishment of the new tort has an impact on employment law. Further, the above case summary provides an important reminder to both employers and employees that protecting privacy should be of the upmost important as to minimize any potential damage awards for breach of confidence and invasion of privacy. While it is common for employment contracts to include provisions related to non-disclosure and confidentiality, a breach of confidence of private information may now be an option to sue on without having to establish an enforceable employment contract in the first place.