Law Times

Page 8 January 23, 2017 • Law Times www.lawtimesnews.com Illegal to post intimate images without consent Damages set aside in online video case BY SHANNON KARI For Law Times A young woman who was awarded $105,500 in damages a year ago after a former boy- friend posted explicit images of her online without consent is back at square one as a result of a decision by the Ontario Divi- sional Court earlier this month. Justice Frances Kiteley did not grant leave to appeal a deci- sion by Justice Grant Dow that struck the original damages or- der imposed by fellow Superior Court Justice David Stinson, in a default judgment released in January 2016. The original decision by Stin- son in the case known as Jane Doe v. N.D. was described as precedent-setting at the time in the area of civil tort liability for invasion of privacy involving ex- plicit images online. As a result of the subse- quent court rulings though, the 24-year-old woman is now awaiting a statement of defence to be filed by the end of this month, more than four years af- ter her initial statement of claim was issued. The ongoing litigation is one of the few examples to date in Canada where someone has sought remedies for an on- line invasion of privacy either through the non-consensual posting of intimate images or hacking of personal data. On the criminal side, there are virtually no reported cases in Canada involving hacking of someone else's digital devices. And since a new Criminal Code provision was enacted in De- cember 2014 making it illegal to post intimate images online without consent, there is only one reported case of a prosecu- tion, which ended with a sus- pended sentence. For individuals who have had their privacy violated and want to initiate a civil proceeding, "there is definitely a cost-benefit analysis," says Molly Reynolds, co-counsel for the young wom- an, known as Jane Doe. At the same time, the Crimi- nal Code amendment indicates a greater awareness of the dam- age caused by these types of pri- vacy violations, she suggests. "What Parliament did is part of the change in that societal con- versation," says Reynolds, a senior associate at Torys LLP in Toronto. Matthew Milne-Smith, a liti- gation partner at Davies Ward Phillips & Vineberg LLP in Toronto, says he is not sure the common law is currently very well designed to deal with indi- vidual breaches of privacy that are technology based. "The other way to do it is through legislation," says Milne- Smith. He points to Manitoba as an example, which enacted the Intimate Image Protection Act last year and makes it a tort for non-consensual distribution of these images. In areas such as hacking, where personal information is spread publicly and might cause signifi- cant distress, there are other im- pediments, says Justin Safayeni, a lawyer at Stockwoods LLP. "The preliminary question is who is doing this to me? Fig- uring that out can be its own battle. There are all sorts of ways to mask it [hacking of personal digital devices]," says Safayeni. Section 430 of the Criminal Code classifies interruption or obstruction of the lawful use of computer data as a mischief of- fence. In one of the only report- ed cases involving this section, a Saskatchewan provincial court judge acquitted a man who post- ed intimate images online of his girlfriend. The data was not property capable of theft, said the judge in R v. Maurer, a 2014 decision upheld on appeal. That decision was issued months before the changes to the Criminal Code involving intimate images came into effect. In the two years since then, the one reported case of this of- fence is from British Columbia. In R v. P.S.D., a suspend- ed sentence was imposed last month on a man whom the judge found took partially clothed im- ages of a woman with whom he was in a volatile relationship without her consent. The defendant sent the pic- tures to two friends and told them to save the images. In his ruling, Judge Danny Sudeyko noted that the only relat- ed case he was presented with was where a defendant was charged with criminal harassment for posting images online and he also received a suspended sentence. In the Jane Doe case, the court heard that the former boy- friend posted an explicit video of the then-18-year-old former girlfriend on a pornographic website. It was entitled "college girl pleasures herself." He also showed the video to male friends who knew the woman. The vid- eo was posted for three weeks online before it was removed. A lawyer for the woman tried unsuccessfully for three years to settle the action. In the hearing before Stinson, the judge was told the defendant declined to settle and told the woman's lawyer "to do what she had to do." In finding the defendant in default and in his reasons for awarding damages, Stinson stat- ed that the torts of breach of con- fidence, intentional inf liction of mental distress and invasion of privacy were made out. "In the electronic and In- ternet age in which we all now function, private information, private facts and private activi- ties may be more and more rare, but they are no less worthy of protection," wrote Stinson in his decision. "This case involves much more than an invasion of a right to informational privacy; as I have observed, in many ways FOCUS ON Privacy Law Molly Reynolds says for people who have had their privacy violated and want to initiate a civil proceeding 'there is definitely a cost- benefit analysis.' See Civil, page 12 FOCUS IT'S TIME TO RANK… WHICH DO YOU THINK ARE THE LEADING PERSONAL INJURY BOUTIQUES AND ARBITRATION CHAMBERS? Complete the survey online at canadianlawyermag.com/surveys and make your picks. VOTING IS OPEN UNTIL FEBRUARY 21 ST Untitled-3 1 2017-01-10 1:42 PM

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