Case Summary and Outcome

Canadian Courts recognized a new type of tort under the tort of invasion of privacy in this novel case. The Defendant was ordered to pay damages for public disclosure of embarrassing facts about the Plaintiff, when he posted a sexually explicit video of her online without her consent. The Court also found breaches of the torts of breach of confidence and intentional infliction of mental distress.

Facts

This case involves an action in default brought by the Plaintiff, Jane Doe against the unnamed Defendant for punitive and compensatory damages and injunctive relief. Plaintiff and Defendant had been friends for several years and had dated for a period of time but remained friends after Plaintiff moved away for college. At one point, after much pressuring from the Defendant, the Defendant convinced the Plaintiff to send a sexually explicit video of herself to him promising that no one but the Defendant would see the video. The day the Defendant received the video, he posted it on a porn site under “user submissions.” The video was up for approximately three weeks but there is no way to tell how many times it was viewed or downloaded. The Defendant also shared the video with friends, many of whom were also friends with the Plaintiff. The publication of the video caused the Plaintiff extreme emotional distress and she is distraught of the impact this video might have on her future and future employment.

The Defendant originally had a lawyer and after settlement talks were unsuccessful, continued pro se and indicated to the Plaintiff’s counsel that he would not continue to participate in the proceedings, leading the Plaintiff to seek judgment by default. The Plaintiff filed her motion for default judgment, and after a hearing the Court granted judgment in favor of the Plaintiff.

Decision Overview

Justice Stinson delivered the opinion of the Court. The Court noted the increasing number of these “cyber-bullying” cases with an increase in technology and the recent amendment of the Canadian Criminal Code to allow a new offense for publication of an intimate image of a person without that persons consent. Manitoba has taken this one step farther and created a cause of action in tort for “non-consensual distribution of intimate images.” [para. 18]. This case presents a novel issue as the first of its kind involving a victim seeking civil damages on these or similar facts.

First, the Court examined causes of action under the doctrines of breach of confidence and intentional infliction of mental distress. The Court found there was a clear breach of confidence in this case. The Plaintiff and the Defendant had a close personal relationship, the video was shared with the Defendant with the assurance that he would not share this with any third party, and the Defendant breached that confidence by posting the video online. For a cause of action for intentional infliction of mental distress the Plaintiff must establish: “(i) conduct that is flagrant and outrageous; (ii) calculated to produce harm; and (iii) resulting in a visible and provable injury.” [para. 26]. The Court found a cause of action on these facts as the Defendant’s conduct in creating a trusting relationship and posting the video online was flagrant and outrageous; this action was clearly foreseeable to produce harm; and it resulted in extreme distress to the Plaintiff shown by her appetite loss, need to seek counseling and other emotional turmoil she underwent.

Next, the Court turned to the main issue of whether an action could exist on these facts for invasion of privacy. The Court looked extensively at the case of Jones v. Tsige, which involved an invasion of privacy action on the basis of intrusion upon seclusion. In Jones v. Tsige the Defendant used her position as a bank employee to access the bank records of the Plaintiff (her spouse’s ex-wife). In Jones v. Tsige, the Court discussed four causes of action that may be available under the tort of invasion of privacy, which included: “1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs; 2. Public disclosure of embarrassing facts about the plaintiff; 3. Publicity which places the plaintiff in a false light in the public eye; 4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.” In Jones v. Tsige, the Court found a cause of action under intrusion of seclusion. In the instant case, the Court found that a cause of action existed for “the unauthorized public disclosure of private facts relating to the plaintiff that would be considered objectionable by a reasonable person.” [para. 44]. The Court adopted this general definition for a tort for public disclosure of private facts with one modification: “One who gives publicity to a matter concerning the private life of another is subject to liability for invasion of the other’s privacy, if the matter publicized or the act of publication (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.” [para. 46]. The Court found that all the elements were satisfied in this case as the Defendant posted a private video of the Plaintiff without her consent, the explicit nature of the video would be highly offensive to a reasonable person, and there was clearly no public interest in this video. Therefore, the Court found a cause of action existed for public disclosure of private facts and the elements of the tort were established in this case.

The Court awarded damages in a total amount of $100,000, which included a pre-judgment interest of $5,500, and costs in the amount of $36, 208.75.  In awarding damages the Court analogized this case to a sexual battery case because of the sensitive information involved.

The Court further granted the Plaintiffs request for injunctive relief, prohibiting the Defendant from distributing the video in the future as it was unclear if he had retained copies of the video. The Plaintiff further sought a no-contact order between the Defendant and the Plaintiff and her family, which the Court granted. The Court also issued an order redacting the names of the Plaintiff and the Defendant from the public in these proceedings because of the nature of the case.