Law Times

Page 10 OctOber 3, 2016 • Law times www.lawtimesnews.com New tort fills gap in privacy law BY JUDY VAN RHIJN For Law Times A motion to set aside the default judgment that established the new tort of "public disclo- sure of private facts" is unlikely to get rid of the cause of action, even if it is successful, according to privacy lawyers. The tort applies to the non- consensual publication of in- timate images, in this case, by posting them online. In January 2016, the case of Jane Doe 464533 v. D. (N.), 2016 ONSC 541 was argued by Donna Wilson of Wilson Liti- gation in the Ontario Superior Court. She represented a young woman who had, under duress, provided a former high school boyfriend with an intimate video that he had immediately posted to a porn site and shown to some of their mutual friends. "We gave him extra notice and extra warning than what was re- quired. He deliberately decided not to defend," recalls Wilson. The defendant was found lia- ble under three heads of liability, including a new tort that applies where the images publicized, or the act of publication, would be highly offensive to the reason- able person and is not of legiti- mate concern to the public. The plaintiff was awarded the maximum amount of damages under the simplified procedure, namely $100,000. Paige Backman, a partner at Aird & Berlis LLP in Toronto, says the new tort "will still be good law for the reason that the evolution of this tort was inevi- table." "The facts of the case leant itself to it. The actions were rele- vant and pervasive. It was recog- nized by the court that the dam- age that can be done is serious, extensive and ongoing because it's on the Internet. It is a viola- tion of a fundamental right of a human being," she says. Backman considers that the evolution of the tort, the lan- guage of the judgment and the position held are wonderful con- tributions to the laws of privacy. "I don't think the evolution of the tort was a surprise," she says. "The circulation of highly sensitive sexual videos without the consent of the party is be- coming far more prevalent be- cause of the technology in play now. Its time has come." She also notes the impor- tance of injunctive relief. "The taking down of the im- ages, as much as you can from the Internet, is equally impor- tant to allow women to move on," she says. However, on July 26, 2016, the defendant brought an action to have the decision set aside, claiming that he did not have the money to defend the original action. In his defence, he did not deny that he had publicized the video, but he claimed that the plaintiff had not stipulated that it was private. "To have the tort set aside, there has to be some air of reality to the defence," argues Wilson. "If the judge rules it's OK to put a sex video online if the com- plainant didn't explicitly say it was private will create a negative precedent. It doesn't accord with the criminal provisions, so how, in civil law, could it be the case?" Wilson is of the opinion that even if this case is set aside, the new tort will remain good law because it fills a gap in the sys- tem of privacy remedies. "This set of facts didn't fit the tort of 'intrusion on seclu- sion,' where information is usu- ally surreptitiously recorded or stolen," she explains. "She gave him the video. It would be re- ally arbitrary and illogical if all situations of intentional harm, whether entrusted or hacked, fell under the same tort." Wilson also thinks that if the damages award is set aside, it will lead to future harm. "If I couldn't go to court and get at least $100,000 general dam- ages, I wouldn't go to court at all. These cases are complicated. I find myself playing computer expert and private investigator as well as everything else," she says. She notes that the clients af- fected by non-consensual porn generally don't have much money. "Most clients are about 20 years old. Perpetrators deliber- ately pick victims who may be university students, thinking: 'What's she going to do?'" She also observes that the de- fendants are often men who do not have assets or professional reputations to protect. "The defendant in this case has no money at the moment, but unless he wants to f lee the coun- try and never step foot on Cana- dian soil again, we will be able to collect, albeit slowly," she says. Wilson has spoken to many lawyers since this case and has found that very few lawyers actu- ally work on sex video and nude photos cases, also known as non- consensual porn and revenge porn. Backman wonders how viable it is to take these cases on. "They often involve some- body younger, where family finances are tight. From a civil liability perspective, that's abso- lutely a problem," she says. She is of the opinion that the $100,000 awarded was quite low. "There is significant harm that is ongoing, incredibly public and you are constantly remind- ed. There are circumstances where the award could be higher, but is it much of a deterrent if the defendant is judgment proof at $50,000 to $100,000?" she says. "The f lipside is that it will get the attention of certain lawyers who will take cases on a contin- gency basis if judgments are high enough. That works if you can actually realize the judgment." Wilson has begun building a subspecialty in the distribution of intimate images that spans various areas of law. "In the future, I am looking to have the websites who en- courage this on the line, as well as the government, provincial and federal, as they have been grossly negligent in their failure to prevent this crime from hap- pening," she says. LT FOCUS Paige Backman says a recent Ontario Superior Court ruling recognized that mak- ing sexual images public can cause 'serious, extensive and ongoing' damage. 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