Ontario Court Expands Privacy Rights, Confirms New Tort for Public Disclosure of Private Facts

The Ontario Superior Court of Justice recently released a significant decision confirming a civil right of action for the publication of an individual’s private information without consent. In Jane Doe 72511 v. Morgan, 2018 CarswellOnt 18310 (Ont. S.C.J.) (Morgan), Jane Doe 72511, the plaintiff, successfully brought claims against the defendants, her ex-boyfriend and his parents, for assault and battery and negligence as the occupiers of the home in which the abuse took place. These claims are beyond the scope of this Legal Update and will not be discussed in further detail.

The decision also established a novel cause of action for claims arising from the distribution of an individual’s private information without their knowledge or consent. In this case, the plaintiff's ex-boyfriend distributed a sexually explicit video of the plaintiff. Following in the footsteps of the Ontario Court of Appeal's seminal decision, Jones v. Tsige, 2012 CarswellOnt 274 (Ont. C.A.) (Tsige), which established the tort of breach of privacy in Ontario, the court in Morgan continued to expand privacy rights in Canada.

The plaintiff met her ex-boyfriend, Nicholas Morgan, while they were both in high school. Shortly after meeting, in December 2012, they began dating. When the plaintiff learned she was pregnant the relationship deteriorated as it became abusive and volatile. In November 2013, the plaintiff gave birth to a son. At this time, the verbal and physical abuse by her ex-boyfriend escalated. In 2014, he was arrested and convicted of assault. In June 2016, the plaintiff learned through a friend that her ex-boyfriend had posted a sexually explicit video of them on a pornography website without her knowledge or consent. The video, posted in March 2014, had been viewed more than 60,000 times and had been linked to ten other pornographic websites. It is impossible to know how many times the video was downloaded or shared.

When the plaintiff confronted her ex-boyfriend about the video, he admitted that he had posted it as revenge for the plaintiff calling the police. Even though the plaintiff convinced the website administrator to remove the video, she remained angry and ashamed. She remained haunted by the possibility that family, friends, employers, and future romantic partners had seen or will see the video. Despite receiving psychotherapy, she remained depressed and anxious.

The plaintiff sued and sought default judgment for damages arising from the posting of a sexually explicit video of her on a pornographic website, without her knowledge or consent. She also sought an order requiring her ex-boyfriend to destroy any photos or videos of her and prohibiting him from any further distribution of said photos or videos.

Prior to Morgan, there was no Ontario law establishing a civil cause of action for posting intimate images without consent. The tort of public disclosure of private fact had only been previously considered by an Ontario court in Jane Doe 464533 v. D. (N.), 2017 CarswellOnt 163 (Ont. S.C.J.). However, that decision was ultimately set aside.

Gomery J. considered Tsige, in which, due to an absence of any common law or statutory cause of action for invasion of privacy, the Ontario Court of Appeal recognized the new tort intrusion upon seclusion. Intrusion upon seclusion was one of four breach of privacy torts identified by William L. Prosser in his article Privacy (1960), 48 Cal. L. Rev. 383:

Tsige did not consider any of the other three breach of privacy torts, but the decision left open the possibility of establishing new causes of action for invasion of privacy in the future. In Morgan, Gomery J. adopted the second of Prosser's breach of privacy torts, public disclosure of a private setting out the following elements:

The plaintiff proved all of the elements of the tort:

Accordingly, the plaintiff's ex-boyfriend was found liable for public disclosure of her private information.

The plaintiff sought orders:

Even though these orders were not sought in the statement of claim or motion for default judgment, they were granted as they were found to be appropriate in the circumstances.

Society and technology are advancing rapidly. With this decision, the Ontario Superior Court of Justice has demonstrated that it is flexible and willing to adapt common law principles in order to protect an individual's right to privacy in today's everchanging social and technological climate. Even though the Personal Information Protection and Electronic Document Act, S.C. 2000, c. 5 only applies to particular organizations in the course of commercial activities, the tort for public disclosure of private facts applies more broadly. Individuals and organizations should be aware of the implications of Morgan regarding the use and publication of personal information.

Practical Law Canada Commercial Transactions has a number of resources to aid counsel in understanding and complying with Canadian privacy laws. Below are some resources relevant to this area of practice: