Tort of Public Disclosure of Private Facts

October 07, 2021

In ES v. Shillington, 2021 ABQB 739, the Alberta Court of Queen’s Bench considered the tort of “public disclosure of private facts”.

The parties were involved in a relationship for 11 years and have two children together. The relationship was marred by the defendant committing multiple acts of physical and sexual assault against the plaintiff. 

Near the end of their relationship, the defendant confessed that he had posted images of the plaintiff online, starting shortly after the relationship began. The images depicted the plaintiff in various states of undress and engaging in sexual activity. At no time did the plaintiff consent to publishing the images. The publication of the images, which the plaintiff located on Internet pornography sites, has caused the plaintiff significant mental distress and embarrassment.

Justice Inglis stated that a tort of public disclosure of private facts is necessary to recognize situations where a wrong exists for which there are no other adequate remedies. A previous decision in Ontario recognized this tort: Jane Doe 72511 v. N.M., 2018 ONSC 6607.

Justice Inglis stated that to establish liability for the tort of public disclosure of private facts, the plaintiff must prove the following:

  • the defendant publicized an aspect of the plaintiff’s private life;
  • the plaintiff did not consent to the publication;
  • the matter publicized or its publication would be highly offensive to a reasonable person in the position of the plaintiff; and
  • the publication was not of legitimate concern to the public.

The defendant was found liable for the tort of public disclosure of private facts.

In terms of a remedy, the defendant was ordered to make best efforts to return all images of the plaintiff in his possession and to make best efforts to remove any images of the plaintiff that he posted online.

The defendant was also ordered to pay general damages of $80,000, punitive damages of $50,000, and aggravated damages of $25,000 for committing the tort of public disclosure of private facts and for breach of confidence and mental distress.

The other element of the claim involved assault, battery, and sexual assault. As a result of those acts, the defendant was ordered to pay general damages of $175,000, special damages of $30,000, aggravated damages of $50,000, and punitive damages of $50,000.

The tort of public disclosure of private facts expands remedies available to plaintiffs in privacy-related actions.