After the Plaintiff was assaulted by her domestic partner while living with him in his parents’ home and he published a pornographic video of her on the internet, he was found liable for the tort of publication of private facts and, together with his parents (as occupiers) was found liable for assault and battery.
Jane Doe 72511 v. Morgan, 2018 ONBSC 6697, per Gomery, J.
FACTS AND ISSUES
The Plaintiff Jane Doe 72511 met the Defendant Nicholas while they were both in high school. They began dating in December 2012. For some time, they lived together as a couple in the home of Nicholas' parents. In May 2013, when Jane realized she was pregnant with Nicholas' child, their relationship deteriorated. He began to verbally and physically abuse her, including in her parents' home, on many occasions when the parents observed the abuse. This included dragging Jane up and down the stairs, throwing her around, choking her, threatening her with a knife, throwing her up against vehicles, forcing her into his vehicle and removing her in such a way as to smash her head. Although his parents observed much of this behavior, they took no steps to stop it or to prevent it from reoccurring other than to verbally admonish Nicholas. He also sent her text messages, threatening to kill her. He stopped when she advised him that sending such text messages was illegal.
In June 2016, Jane was told by a friend that a sexually explicit video of her had been published and was publically available on an internet pornography site. The video depicted her performing oral sex on Nicholas. Her face was clearly visible throughout but his face was not. At the time that the video was recorded, she had not been a minor and had consented to making the video, although she did not consent to its disclosure to other people. Eventually, Jane persuaded the website administrator to remove the video but, by that time, it had already been viewed over 60,000 times and there was no telling how many other times it had been downloaded or shared among others on the internet.
Nicholas admitted to Jane that he had posted the video as revenge for her having had him criminally charged for assault. He posted a text to the effect that since she had caused him to have a criminal record for life, it was a “fair trade” that she should end up being an “internet whore for life”.
As a result, Jane felt depressed, violated, and alone. She continued to experience intense shame and anger. She required psychotherapy. She was “sick with fear” that her son, current or future coworkers, friends or others would know of the video or come to know of it. She was concerned that she would be considered a bad mother and denied educational, employment or social opportunities as a result.
Jane sued Nicholas for publication of private facts and also for assault and battery, claiming for aggravated and punitive damages and seeking a declaration. She also claimed against his parents for the assault (in their capacities as occupiers of the home in which it took place under the Occupiers Liability Act, R.S.O 1990, c. O.2).
The Defendants were all noted in default and this matter proceeded in the context of an assessment of damages in default.
HELD: For the Plaintiff; $20,000 in damages awarded against all Defendants for assault and battery plus $100,000 against Nicholas Morgan for posting the video ($75,000 in generals and $25,000 in punitive damages).
The Court held that Nicholas was liable for assault and battery.
- The Court held that, as a matter of law, Jane could not consent to the intentional application of force to her person in these circumstances:
45 In R. v. Jobidon, the Supreme Court of Canada ruled that a person cannot consent to intentional application of force causing serious hurt or non-trivial bodily harm. A person may consent to participate in sporting activities that might result in injury at the hands of another player, on the assumption that the rules and usual practices of the game would be observed. A person may also consent to a schoolyard scuffle that could give rise to trivial injuries. But, as a matter of public policy, a person cannot agree to assume the risk that they will be physically battered or threatened with bodily harm. I see no reason why this principle should not apply in the context of activity that gives rise to civil liability for battery and assault, as opposed to activity that might rise to a criminal charge. As a result, I conclude that Jane could not have voluntarily assumed the risk that Nicholas would physically harm her while she was a guest at the [parents’] home.
The Court found that his parents were also liable for the assault and battery as occupiers of the place where it took place. They owed her a duty of care, which they breached.
- Occupiers can be found liable for an occupant’s assault on another person where the assaulter has a history:
48 An occupier is liable under the OLA when they fail to take reasonable steps to prevent foreseeable harm caused by someone on the premises. Physical injury caused by other persons may be foreseeable where the occupier knew that:
- the person who caused the harm has a history of violence; or
- the person who caused the harm and their victim had previously had a confrontation.
- The parents were held to have had the requisite knowledge of their son’s propensities in this case:
54 Knowing of the risk of ongoing injury to Jane, the [parents] had a duty to take reasonable care to keep her safe while she was in their home. When they first witnessed him physically abusing her, they could have called the police or intervened to prevent further violent acts against Jane. They took no steps, however, to intervene or prevent Nicholas’ abuse. Instead, they confined their involvement to sometimes yelling at Nicholas to “get off that girl”.
- The parents were not liable for their son’s posting of the intimate video.
The Court recognized the tort of public disclosure of private facts as an action for breach of privacy.
- The Court agreed with earlier cases of Jones v. Tsige, 2012 ONCA 32 (recognizing the tort of intrusion upon seclusion) and Jane Doe 464533 v. D.(N.), 2017 ONSC 127 (recognizing the tort of public disclosure of private facts where they recognized that the common law must adapt to new technologies and that where there is a right there must be a remedy).
- After noting that Parliament had amended the Criminal Code, R.S.C. 1985, c. C-46 to include a crime of publication of intimate images without consent (s.162.1), the Court held that this established such conduct should attract a civil remedy and that the best way to create such remedy is to recognize the tort of public disclosure of private facts.
84 Where misconduct is identified as wrong, harmful and antithetical to an orderly society such that it attracts a criminal sanction, it makes sense that the same misconduct should give rise to a civil remedy. For example, in the case at bar, Nicholas was convicted for his criminal assault of Jane in March 2014, and she has a civil remedy (battery) against him for this same conduct. The criminal charge is based on the collective interest in deterring and sanctioning violent and anti-social behaviour. The civil remedy allows the victim to recover damages for their injury.
85 Parliament’s criminalization of the publication of an intimate image without consent recognizes that this behaviour is highly offensive and should give rise to a civil remedy for a person who suffers damages as a result of it. The only question is how this is best accomplished.
86 I conclude that the best way of fashioning a civil remedy is to adopt the tort of public disclosure of private facts in Ontario. In doing so I rely on the same reasoning that led the Court of Appeal to recognize the related tort of intrusion on seclusion in Jones v. Tsige.
- It was held that recognition of such a tort would be consistent with Charter values. While the Charter does not apply to private entities, the common law should incorporate such values. The Court rejected the proposition that it should be left to the Legislature to recognize such a tort (para. 92).
- It was held that a “cause of action for public disclosure of private facts represents a constructive, incremental modification of existing law to address a challenge posed by new technology” (at para. 93).
- The Court held that the right of privacy demanded recognizing such a tort as a remedy:
95 Finally, failing to provide a remedy in this case would deprive Jane of any meaningful recourse in the face of a deliberate and flagrant breach of her privacy rights. In Jones v. Tsige, the Court of Appeal characterized Tsige’s actions in accessing Jones’ personal banking records as “deliberate, prolonged and shocking”, and said that the case cried out for a remedy. But, in that case, Tsige took no steps to record, publish or distribute the plaintiff’s information, and Jones suffered no long-term damages as a result of the breach of her privacy rights. In the case at bar, the explicit video that Nicholas posted without Jane’s knowledge or consent remained online for over two years, and was viewed over 60,000 times. The damage suffered by Jane is profound and still ongoing. How can the court deny her a remedy in these circumstances?
96 I conclude that Jane has a cause of action against Nicholas for the public disclosure of private facts without her consent. In Jones v. Tsige, the Court of Appeal recognized the need for civil remedies to protect the privacy of personal information. I see no reason why this protection should not extend to prevent the unauthorized publication of intimate images, given the privacy rights at stake and the seriousness of the situation. Is Nicholas liable for public disclosure of private information on the evidence here?
- The Court summarized the elements of this tort:
97 I agree with the elements of the cause of action proposed by Stinson J. which for convenience sake I will reproduce again here:
One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of the other’s privacy, if the matter publicized or the act of the publication (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.
98 I accept Stinson J.’s modification to the description of the tort in the Restatement, because it is important to emphasize that a sexually explicit videotape is not in itself necessarily “highly offensive”. There is nothing inherently wrong about taking intimate photos of an adult or filming consensual sex between adults, or agreeing to participate in such photos or recordings. What is wrong is the non-consensual publication or sharing of a photo or recording of someone who did not want to share it with anyone else.
99 To establish liability, the plaintiff must therefore prove that:
- 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; and
- The publication was not of legitimate concern to the public.
The Court held that Jane had established the elements of the tort in this case and found Nicholas liable.
The Court found that the assessment if damages against Nicholas and his parents for the assault in this case was analogous to the quantification of damages in cases of domestic abuse not resulting in permanent physical injury, awarding general damages of $20,000 (the full amount claimed), although an award of $25,000 would have been awarded if it had been asked for:
120 Weighing these factors and the case law on the range of damages, I conclude that Jane is entitled to the full amount of general damages of $20,000 that she has claimed from Nicholas. I would in fact have awarded her up to $25,000 if a higher amount had been sought. This amount is in the higher range of damages awarded in cases involving violence against spouses that do not result in any permanent physical injury. It is appropriate due to the repeated, ongoing nature of Nicholas’ physical and verbal abuse and Jane’s vivid evidence on the terrifying nature of the incidents in September 2013 and March 2014. Even in the absence of any permanent physical injury, I am persuaded that this experience has left Jane with significant emotional and psychological trauma. A lesser award would not adequately compensate Jane for what she experienced when she was pregnant with MK and in the months that followed his birth.
The Court held that the general damages against Nicholas for the breach of privacy should be assessed as analogous to awards for sexual assault.
- The Court held:
123 Revenge porn can have devastating consequences. In the most extreme cases, where sexually explicit images of very young people have been shared without their consent, the victims have been driven to suicide because of their feelings of intense shame and social isolation. In every case, the victim is betrayed by someone they trusted. Something that may have been a celebration of their affection or sexual attraction for another person is used against them. They have forever lost their right to control who sees their body. Even if the posting is removed, copies remain as the result of downloads and sharing. They live with the fear that this single event will define how they are perceived and treated by family, friends and strangers for the rest of their lives.
124 As Justice M. M. Rahman eloquently observed in a case where unauthorized, sexually explicit videos of a young woman, C.S., were posted on the same website that the video of Jane Doe was posted: There is a popular saying that “the internet never forgets.” C.S.’s images became available as torrents. That means they remained available to others even though the offender removed them from the websites to which he had originally uploaded them. There is no way to know how many people have access to the images. Every time someone views one of these images, C.S.’s privacy and dignity are violated. C.S. must live with the knowledge that strangers anywhere in the world may view her private images whenever they choose to. She has lost control over a very private part of her life forever. She faces the potential violation of her privacy, by total strangers, in perpetuity.
- Revenge porn is more egregious than intrusion upon seclusion (para. 131).
- The factors to be considered in assessing the quantum were summarized:
129 Stinson J. then reviewed the factors approved by the Supreme Court of Canada in Blackwater v. Plint, a sexual abuse case. The factors included:
- The age and vulnerability of the victim. When the video was posted, the plaintiff was an 18-year old university student.
- The number, frequency and nature of the assaults. Stinson J. characterized the defendant’s actions in posting the video as “very invasive and degrading”. There was no way to know how many times it had been viewed, copied and downloaded. The defendant showed the video to his friends, who were also acquaintances of the plaintiff. The judge concluded that: “Although there was no physical violence, in these circumstances, especially in light of the multiple times the video was viewed by others and, more importantly, the potential for the video still to be in circulation, it is appropriate to regard this as tantamount to multiple assaults on the plaintiff’s dignity.”
- The defendant’s age and whether he was in a position of trust. The defendant was also 18 years old, and had been in an intimate, and thus trusting relationship with the plaintiff over a long period of time. He had specifically assured the plaintiff that, if she sent him the video, he would not share it with anyone else. The posting of the video was therefore a breach of trust.
- The consequences of the wrongful behaviour on the victim, including psychological injuries. Stinson J. described the consequences to Jane Doe 464533 as “emotionally and psychologically devastating” and ongoing.
In this case the Court awarded general damages of $50,000 against Nicholas plus $25,000 in aggravated damages for public disclosure of private facts:
132 In these circumstances, I conclude that Jane’s damages are much more significant than those that would typically be awarded for intrusion on seclusion or another similar breach of privacy. The internet never forgets. Her dignity and personal autonomy have been, and will continue to be, compromised by Nicholas’ actions. As stated by Justice Cromwell, the damages award must “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”.
133 I must also consider whether aggravated damages should be awarded to the award of general damages.
134 Aggravated damages may be awarded if a battery has occurred in “humiliating or undignified circumstances”. These damages are not awarded in addition to general damages. Rather, general damages are assessed “taking into account any aggravating features of the case and to that extent increasing the amount awarded”. Like general damages, aggravated damages are compensatory.
. . .
137 Based on the test I have adopted, liability for public disclosure of private facts requires the court to find that the defendant’s conduct was “highly offensive”. This element of the tort does not mean that an aggravated damages award will be appropriate in every case where the cause of action is made out. There must be something more.
138 In this case, I conclude that there was something more. Nicholas was motivated by actual malice. His conduct increased Jane’s humiliation and anxiety. He aggravated the damage to Jane’s reputation by posting the video to a pornographic website, giving it a degrading title (“yellow hoe sucking a big one”), and showing it or sharing it with his friends. He further added to Jane’s distress after she discovered the video by taunting her and threatening to post further nude images of her online.
139 I conclude that Jane is entitled to general damages of $50,000, and an additional amount of $25,000 for aggravated damages. I therefore order Nicholas to pay $75,000 in general and aggravated damages to Jane for his posting of the video on the internet.
The Court awarded a further $25,000 in punitive damages against Nicholas for the breach of privacy:
140 Punitive damages are awarded for malicious, high handed, arbitrary or highly reprehensible misconduct that falls outside the standards of decent behaviour. Punitive damages are exceptional. Their function is not to compensate the plaintiff for harm or loss suffered. The objectives of punitive goals are instead to punish the defendant, denounce their conduct, and deter similar behaviour in future. Punitive damages are only awarded when the compensatory damages awarded are insufficient to accomplish the objectives of punishment, deterrence, and denunciation.
141 I have already found that Nicholas acted maliciously. His conduct was highly offensive and inconsistent with standards of decent behavior. He has shown no remorse for his actions. On the contrary, when Jane discovered the video, he sent her texts telling her to “fuck off” and threatened to humiliate her further by distributing other nude images.
142 In my view, the compensatory damages already awarded are not sufficient to accomplish the objectives of punishment, deterrence and denunciation. Punitive damages are necessary here to emphasize the seriousness of Nicholas’ malicious actions and to deter others from similar behaviour. Revenge porn is an assault to the victim’s personal agency and sense of self-worth. Nicholas posted the video with the purpose of making Jane an “internet whore for life”. This must be sanctioned.
The Court also issued orders (para.144 – 145):
- “directing Nicholas to destroy any and all nude photos, intimate images or sexually explicit recordings he may have of Jane, and prohibiting him from publishing, posting, sharing or otherwise disclosing in any fashion any nude, intimate or sexually images or recordings of Jane”; and
- “retroactively amending the title of proceedings so that the plaintiff’s name would appear as ‘Jane Doe 72511’ on all pleadings, and sealing her affidavit in support of the default judgment”
This case is yet another which recognizes the tort of public disclosure of private facts. We believe that it will be followed in Alberta. In Alberta, the Legislature has created a statutory cause of action for “revenge” porn