COMPROMISING/EMBARRASSING PHOTO OF YOU POSTED ONLINE BY ANOTHER? YOUR PRIVACY MAY BE BREACHED. YOU MIGHT BE ENTITLED TO DAMAGES.
Publishing online very personal or intimate information or images of another may be a very costly mistake.
The Ontario Court is increasingly awarding significant damages against those who do so. For example, in a case called Jane Doe 464533 (the Plaintiff’s name cannot be disclosed), the Court ordered damages and costs totaling $141,000, plus an order for the offending Defendant to destroy any video or images he retains of the Plaintiff and prohibiting him from sharing any intimate images of her. He was also ordered not to communicate with the Plaintiff or any of her family.
The Plaintiff was a young woman in her late teens. Due to pressure from her ex-boyfriend, she agreed to share with him a sexually explicit video of herself. He promised he would not share it with anyone else. However, he subsequently posted the intimate video of her on a pornography Web site without her knowledge or consent. The police refused to criminally pursue the matter.
The Plaintiff eventually sued him for breach of her privacy and, specifically, for his public disclosure of embarrassing private information about her, after attempting to settle the matter with lawyers involved. The Defendant boyfriend did not ultimately defend the lawsuit, so the Court decided the case and awarded damages to the Plaintiff without a challenge to the Plaintiff’s claim. However, the Court reviewed the law and provided a well-reasoned, thorough decision, even though the Defendant did not defend the claim. The case is subject to a publication ban of the name of the Plaintiff.
The Plaintiff relied on fairly recent, emerging cases in Ontario recognizing an expanding ability for a person to sue another directly for breach of privacy, or for “intrusion upon seclusion”.
The Court awarded the Plaintiff $100,000 in damages (noting that she had limited her claim to this maximum amount in the lawsuit). These damages are much higher than the $20,000 “cap” that had previously been established by Ontario’s Court of Appeal in the earlier cases for intrusion upon seclusion.
Therefore, this case expands on privacy protection in Ontario and allows a person to civilly claim and be awarded significant damages when that person’s personal/private information is published online, provided this test is met.
To succeed, it must be proved that “the matter publicized or the act of the publication” is “highly offensive to a reasonable person” and is not “of legitimate concern to the public”.
Undoubtedly the law of privacy in Ontario continues to grow and expand. More cases will be needed to clarify and further develop this law, but this case clearly indicates the Court’s willingness to do so, including for “public disclosure of embarrassing private facts”.
January 10th, 2020
Posted in Litigation