Combined torts of breach of privacy and confidence lead to first damages award in Ontario

The case of Jane Doe 464533 v. N.D. [2016] O.J. No. 382 is the second civil case of its kind in Canada to award monetary damages for the tort of intrusion upon seclusion (breach of privacy). But it is the first to award damages against a defendant for the combined torts of breach of privacy and breach of confidence.The conduct which gave rise to the award was the action of posting an intimate video of the plaintiff on a pornography website without her knowledge or consent. The court also found that the elements of the tort of intentional infliction of mental suffering were present in the defendant’s actions.

Intimate video posted to pornography site without consent or knowledge

The plaintiff and the defendant had dated in high school. They carried on a romantic relationship and friendship after high school while the plaintiff was away attending post-secondary. The judge found that the defendant convinced (a very reluctant plaintiff) to record an intimate video of herself and send it to him. He promised that he would never show it to anyone and provided, as proof of his loyalty, the fact that he had also sent her intimate videos of himself.

Remedy sought included monetary damages and an injunction against further sharing of video

Almost immediately upon receipt of the plaintiff’s video the defendant posted it on the internet on a pornography site. He also shared it with his friends and mutual friends of theirs.  When the plaintiff found out she was devastated and suffered mental distress including dropping out of school and hiding herself away in her home. She advised the court that she had grave concerns that the defendant (who did not provide a defence in the action and did not attend court) still had the video and that it may still be on the internet and may come back to haunt her in her chosen career. Therefore, in addition to monetary damages the plaintiff requested an injunction against further sharing of the video and the deletion of her name or any identifying names in the court case (hence the name “Jane Doe” and the initials of the defendant).

The plaintiff brought her action under the summary judgment rules in Ontario. The limit of recovery under those rules is $100,000 in damages. The court found that the elements of all 3 torts were present in the actions of the defendant: breach of confidentiality, intentional infliction of mental suffering, and intrusion upon seclusion.. The judge ordered $50,000 in general damages, $25,000 in aggravated damages and $25,000 in punitive damages plus interest. In addition the court awarded full indemnification of costs, an injunction and the retroactive deletion of any identifying names in the judgment.

New criminal offence of publication of an intimate image without consent

Since 2014 there exists a criminal penalty in Canada in the Criminal Code to include a new offence of “publication of an intimate image without consent”: Criminal Code, R.S.C., 1985, c. C-46, as amended, s. 161.1. Under this new provision, anyone who publishes an intimate image of a person without that person’s consent is guilty of an offence and can be sentenced to up to five years in prison. In November 2015, Manitoba created a statutory violation for the conduct addressed in this case when it enacted legislation creating the tort of “non-consensual distribution of intimate images”: see The Intimate Image Protection Act, C.C.S.M. c. I87, s. 11. However, this case is the first of its kind to address this kind of activity in the common law. In assessing damages the court looked to damages awarded in sexual assault and harassment cases.

If you want more information about privacy breaches and the types of cases where injunctions or monetary damages may be appropriate, please contact one of our Litigation Counsel team and they will be happy to assist you with any privacy related questions.