Law Times

Law Times • February 8, 2016 Page 5 www.lawtimesnews.com Egregious breach of privacy leads to landmark ruling GABRIELLE GIRODAY Law Times A recent ruling that found a man financially liable for posting a private sex tape of a former girlfriend on- line sends a message that large damages can be awarded in egre- gious cases. Alex Cameron, partner at Fasken Martineau DuMou- lin LLP and leader of the firm's privacy and information protec- tion group, says Canadian courts have been grappling with the question of damages for privacy breaches for some time, typically in cases where plaintiffs have suffered no harm. In Jane Doe 464533 v. N.D., a then 18-year-old man shared a video of his one-time girlfriend that he'd promised her would re- main private. "The Jane Doe 464533 v. N.D. decision is different — it deals with unique and exception- al circumstances involving an egregious breach of privacy," says Cameron. The day the then-18-year- old woman sent the video to the young man, he posted it online. It was available for three weeks, and accessed or copied an unknown number of times, before it was taken down. According to the ruling by Ontario Superior Court Jus- tice David Stinson, the damages against the defendant for posting the video were $100,000, as well as pre-judgment interest of $5,500. The ruling included general damages of $50,000 for "the past and ongoing impact of the defen- dant's actions on the plaintiff," as well as $25,000 for the breach of trust the plaintiff committed by making a private video public, and $25,000 for punitive damages. "Personal and private com- munications and the private sharing of intimate details of person's lives remain essential activities of human existence and day-to-day living. "To permit someone who has been confidentially entrusted with such details — and in par- ticular intimate images — to intentionally reveal them to the world via the Internet, without legal recourse, would be to leave a gap in our system of remedies," said the ruling. "I therefore would hold that such a remedy should be available in appropriate cases." In the landmark case Jones v. Tsige, there were $10,000 in damages, after a bank employee illicitly checked out confidential information about her husband's ex-wife. "[Jones v. Tsige] was a much different situation, however; while it, too, was a case involving 'invasion of privacy,' the privacy right offended and the conse- quences to the plaintiff there were vastly less serious and offen- sive than the present case," said the ruling by Stinson. " . . . This case involves much more than an invasion of a right to informa- tional privacy; as I have observed, in many ways it is analogous to sexual assault." Justice Stinson's ruling notes in this case the plaintiff 's action was under the Simplified Proce- dure, so the damage claim was restricted to a $100,000 limit. "As the Court of Appeal stat- ed in Jones v. Tsige, given the 'intangible nature' of privacy interests, plaintiffs will often be awarded a modest sum unless a loss can be proven," says Cam- eron. "However, one of the inter- esting features of the Jane Doe 464533 v. N.D. decision is that it does not apply the damages framework contained in past privacy tort cases at common law and pursuant to statutory torts. "Instead, given the facts of the case, the Court adopted damages considerations arising in sexual assault cases. This approach will be an important consideration to bear in mind in future cases, as plaintiffs may seek to draw an analogy between a privacy breach and breaches of other rights in respect of damages claimed." Justice Stinson also fixed the plaintiff 's cost of the action and motion on a full indemnity basis at an all-inclusive sum of $36,208.73, bringing the full award to $141,708.03. Iris Fischer, partner with Blake Cassels & Graydon LLP, says, "The decision, unlike Jones v. Tsige, does not set any cap on non-pecuniary damages." Fischer says it's possible that "more could be available in cases analogous to a sexual assault, as the judge found this one to be." "Of course, here, the court was limited by the Simplified Proce- dure Rules, but that won't always be the case," says Fischer. "The analogy to sexual assault cases highlights the dignity-based na- ture of this tort. While this was initially the Court of Appeal's focus in Jones v. Tsige, where it recognized intrusion upon se- clusion, recent class action cer- tification decisions indicate that courts are developing intrusion upon seclusion into more of a negligence-based cause of action, where no 'intrusion' is required. "How this new tort of 'publi- cation of embarrassing facts' may be developed, and in what con- texts, remains to be seen." LT NEWS The Canadian Lawyer InHouse 2016 Innovatio Awards is the pre-eminent award program recognizing innovation by members of the Canadian in-house bar in business, government or non-profit. The third annual awards celebrate in-house counsel, both individuals and teams, who have found ways to show leadership by becoming more efficient, innovative and creative in meeting the needs of their organizations. For more information, please contact Jennifer Brown Email: jen.brown@thomsonreuters.com | Phone: 416-649-8867 NOMINATIONS ARE OPEN! We are looking for Canada's most innovative in-house counsel NOMINATE AN INDIVIDUAL OR TEAM IN THE FOLLOWING CATEGORIES: • Law department management • Diversity • Best practices in compliance systems • In-house M&A/Dealmakers • Working with external counsel NOMINATIONS CLOSE FEBRUARY 15, 2016 Nomination forms and more information can be found at: www.innovatio-awards.com • Litigation management • Risk management • Tomorrow's leader in innovation • New this year: Law department leadership HOSTED IN PARTNERSHIP WITH BRONZE SPONSOR PLATINUM SPONSOR SILVER SPONSOR Alex Cameron says a recent ruling deals with unique and exceptional circumstances around an egregious privacy breach.

• Cover