Until recently, a person’s ability to sue for privacy concerns in Canada has been limited to traditional torts such as defamation, negligent/intentional infliction of mental distress, breach of confidence or harassment. This has not been satisfactory since the traditional torts have developed without reference to the abundance of modern privacy concerns in the age of the internet and social media. The elements of these torts and the available remedies do not address modern privacy concerns very well. While privacy torts traditionally have been personal, they can potentially be applied to work environments, and employers could face risks should their employees commit wrongful acts.
Since 1960, American law has recognized four specific common law privacy torts, initially summarized by William Prosser into what is known as the “Prosser Four”1:
- Intrusion upon seclusion;
- Public disclosure of private facts;
- Publicity placing the plaintiff in a false light in the public eye; and
- Appropriation of plaintiff’s name or likeness for the defendant’s advantage.
These torts have developed to specifically address modern privacy concerns without the limitations of traditional torts.
Only recently have some of the Prosser Four come to be recognized in a few provinces, to the point where provincial legislatures had enacted statutory torts to deal with these issues. In Alberta, only one statute is in place, and it only addresses public disclosure of public facts in a limited context: the Protecting Victims of Non-Consensual Distribution of Intimate Images Act2. Federally, it is a crime to publish, distribute, transmit, sell, make available or advertise an intimate image of a person without consent3, however, it does not provide for a civil remedy.
Public Disclosure of Private Facts
The Ontario courts, in particular, have recognized the tort of public disclosure of private facts (“PDPF”), generally listing to elements to be:
- Publication by the defendant of a matter concerning the private life of the plaintiff;
- The publicity would be highly offensive to a reasonable person; and
- The publication is not of legitimate concern to the public.
Many of the Canadian cases involving PDPF relate to “revenge porn” scenarios, where a defendant publicly posts intimate images of the plaintiff (obtained from or generated with the plaintiff’s consent in the course of a relationship) on the internet4. This scenario does not begin to cover the entire scope of this tort, and only a few other PDPF scenarios have been recognized5. Some of these cases are of limited precedential value in that they arise in the context of default judgements. One Alberta case declined to dismiss a PDPF case in an interlocutory application where the defendant did not contest the existence of the cause of action6.
PDPF Recognized in Alberta
The Alberta Court of Queen’s Bench recently joined the twenty-first century when it recognized PDPF as a new common law tort in S.(E.) v. Shillington. The female plaintiff successfully sued the male defendant for sexual assault and battery, intentional infliction of nervous shock, breach of confidence, and PDPF. She received significant damages and a permanent injunction prohibiting the defendant from reposting private images and requiring him to remove images already published. The defendant was noted in default, and the case proceeded with considerable evidence and an in-depth analysis of the tort.
In the course of an intimate relationship between 2005 and 2016, the plaintiff shared explicit images of herself the depicted her engaged in sexual activity with the defendant and in various states of undress. The photos were taken as a personal gift for the defendant due to their separation while deployed for his military duties. There was an understanding that he would not distribute these images in any way. In 2016, the defendant disclosed to the plaintiff that he had been sharing some of the photos since 2006. The plaintiff discovered numerous images on the defendant’s social media and pornography sites, and some were still online as late as 2021.
The plaintiff claimed to have suffered “nervous shock, psychological and emotional suffering, depression, anxiety, sleep disturbances, embarrassment, humiliation, and other impacts to her wellbeing”, as well as post-traumatic stress disorder and public humiliation. At one point, a neighbour spoke to her in a sexual manner after recognizing her in some of the online posts. As part of her affidavit evidence, the plaintiff’s psychologist described “the Plaintiff’s anxiety, inability to emotionally engage with a romantic relationship, and other significant ongoing symptoms that negatively affected [her] life” and stated that “she still suffered many of the negative effects of her past experiences with the Defendant”7. This was in addition to physical and psychological injuries arising from the sexual assaults.
In addition to finding the defendant liable for breach of confidence, the Court found him liable in the new tort of PDPF. The Court noted that “other existing torts do not offer a remedy to the particular conduct complained of” because they require a claimant to prove that the information was confidential and communicated in confidence as well as having been misused by the defendant. Madam Justice Inglis enumerated four elements for this tort in Alberta:
68 Therefore, in Alberta, to establish liability for the tort of Public Disclosure of Private Facts, the Plaintiff must 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 in the position of the plaintiff; and,
- the publication was not of legitimate concern to the public.
69 All three cases — Jones, Jane Doe #1, and Jane Doe #2 — recognize the privacy interests inherent in financial and sexual matters. Relationships and health records also fit into the category of “private life” matters. If publicized information does not match one of these groups, the test from Campbell (at paras 94-96) is an appropriate starting point to determine the issue of whether or not the information in question is private arises: “What would a reasonable person feel if they were place in the same position as the claimant faced with the same publicity?”: at para 99.
In this case, the Court found that liability for PDPF was “straightforward”:
70 In Jane Doe #2, the court made detailed findings of fact of the defendant’s conduct, and only brief consideration was required for the court to find the defendant liable for this tort. The court noted at paras 100-101:
Jane has proved all of the elements of the tort. In posting the sexually explicit video of her, Nicholas publicly disclosed an aspect of her private life. She did not consent to this. A reasonable person would consider the posting of the video highly offensive, because the video showed Jane’s face and body and allowed strangers to see her engaged in sexual activity. The title given to the posting was also degrading and racist. There was nothing about the video that gave the public a legitimate interest in its publication.
I accordingly conclude that Nicholas is liable to Jane for his public disclosure of her private information.
72 In the matter before this court, the application of the tortious principles is equally straightforward. By uploading the Plaintiff’s explicitly sexual images to accessible websites the Defendant publicized an aspect of her private life; the Plaintiff did not consent to this action; the publication of the images is highly offensive to a reasonable person in the position of the Plaintiff; and, there is no legitimate concern to the public that warranted the publication.
The events in this case occurred before the passing of the Protecting Victims of Non-Consensual Distribution of Intimate Images Act8, which created the statutory tort of non-consensual distribution of intimate images. Accordingly, the Court did not have to comment on whether or not the creation of the statutory tort replaced a common law cause of action for PDPF. However, the judge noted that the statutory tort was of limited scope and did not cover all of the types of conduct that the common law tort would catch:
42 Further, the Act only protects distribution of intimate images, and the term “intimate image” is narrowly defined, limiting the availability of this remedy to those images defined as where the victim is nude, exposing their genital or anal regions or breasts, or is engaged in sexual activity: Act, section 1(b). While that definition would apply to the Plaintiff in this matter, the proposed tort could protect information not contemplated by this legislation even if the distribution occurred after it came into force (for example, the facts in Racki [v Racki, 2021 NSSC 46], above). The Plaintiff correctly points out that the Act does not protect privately sharing such images, which is also a potential gap in the statutory framework.
The Court awarded the plaintiff $155,000 in damages for the PDPF, intentional infliction of nervous shock and breach of confidence ($80,000 in general damages, $25,000 for aggravated damages and $50,000 for punitive damages). This was in addition to $305,000 for the sexual assault and battery.
The recognition of the privacy tort of public disclosure of private facts in Alberta marks the court’s willingness to provide a remedy for violations of privacy that may have historically been overlooked. This opens the door for other torts like intrusion upon seclusion that have been recognized in other jurisdictions but not fully addressed within this province.
While the tort of public disclosure of private facts often arises in the context of personal affairs, organizations should recognize the potential application of privacy torts in work environments and the potential risks employers face through the action of “rogue” employees committing wrongful acts.
1 William L. Prosser, “Privacy” (1960) 48 Cal. L. Rev. 383; Restatement (Second) of Torts (2010)
2 SA 2017 c. P-26.9
2 Criminal Code, RSC c. C-46, s. 162.1
4 Jane Doe 464533 v. D.(N.), 2016 ONSC 541; Jane Doe 72511 v. Morgan, 2018 ONSC 6697, per Gomery, J.; Halley v. McCann, 2016 CanLII 58945 (Ont.S.C.S.M.)
5 For example, see Yenovkian v. Gullian, 2019 ONSC 727
6 L.D.S. v. S.C.A., 2020 ABQB 586
7 At ¶ 16At ¶ 43
8 SA 2017 c. P-26.9