Small Claims Court Elaborates on Scope of New Privacy Tort
In 2018, a new tort of public disclosure of private information was recognized by the Ontario Superior Court in Jane Doe 72511 v N.M., 2018 ONSC 6607. In this decision, the defendant was found liable for uploading an intimate video of the plaintiff on an explicit website without the plaintiff’s knowledge or consent. In recognizing this new tort, the Court created a new civil remedy to protect the privacy of one’s personal information.
There are few decisions since this seminal 2018 decision which have considered the scope of the new tort. However, in Cope v Gesualdi, 2021 CanLII 58972, a decision released earlier this month, the Court assessed whether the defendant could be liable for posting a video of a police interview of the plaintiff on multiple platforms and mediums.
The video contained the plaintiff’s personal information and details related to domestic abuse and marital discord between the plaintiff and the defendant. After threatening to make the video public, the defendant posted the video on the website of the plaintiff’s employer, and disseminated it to radio and print media in the GTA. Deputy Justice Tweedie considered whether this conduct satisfied the elements of the new tort.
The following elements must be present to establish the tort of public disclosure of private information:
- the defendant publicized an aspect of the plaintiff’s private life;
- the plaintiff did not consent to the publication;
- its publication would be highly offensive to a reasonable person; and
- the publication was not of legitimate concern to the public.
Deputy Justice Tweedie held that these elements had been satisfied by the evidence proffered throughout the course of the trial. As part of his reasons, Tweedie D. J. remarked:
The common law must remain an efficient mechanism for shaping social norms and should not be outpaced by new technologies. By means of deterrence, cyberlaw may make an important contribution in helping change social attitudes by condemning behaviours which undermine trust and respect for human dignity. . .
The plaintiff has suffered a real loss of personal dignity and harm to her self-esteem. This court finds that the posting and dissemination of the video was deliberately calculated to produce emotional harm to the plaintiff and that there was no other purpose on the part of the defendant.
In assessing damages, the Court acknowledged that a distinction ought to be drawn between the publication of sexually explicit media, as was the case in Jane Doe v. 72511 v. N.M., and video concerning marital discord.
The Court noted that compensation for the tortious disclosure of personal information must proportionate to the “depth of the resulting scandal”, and that “the more intimate the information and the more extensive the disclosure, the greater the award”. On this basis, the plaintiff was awarded $12,500.00 in general damages on account of the defendant’s public disclosure of her private information.
Takeaway
While there has been little judicial commentary on the potential scope and applicability of this new tort, this decision suggests that the class of individuals who may bring claims for invasions to their privacy and improper disclosures of their personal information has become broader.