In Ontario, you cannot cast me falsely in the public eye, online or otherwise.

Doing so is considered a form of invasion of my privacy and, if online, cyberbullying.

In this family law case, a spouse claimed intrusion on seclusion and invasion of privacy, because the other spouse had posted YouTube videos of his interactions with the children at issue, despite Court orders made previously prohibiting him from doing so.

The offending spouse had also created cybercampaigns against the other spouse, her family, a lawyer involved and a judge.

The father was also accused of mocking one of his children with a neurological disorder.

Said the Court:

“Children are particularly vulnerable to the online postings of a parent which expose the intimacy of a child’s life which only a parent should have access to…….” and “Public posting of recorded in-person and Skype access visits with children, photographs of parental moments, and written and video commentary about the children in a cyberbullying campaign directed to undermining the spouse in family law litigation, viewed objectively, is an offensive intrusion on the privacy of the child.”

What does this mean? Ontario now allows a claim for breach of privacy for publicly placing a person in false light – effectively, it allows a person to attempt to control he or she is presented, or identified, online.  In this case, the focus was on the children of the marriage, but the same principles apply to everyone else.

Prior to this case, Ontario has recognized the following types of breach of privacy claims available to us:

1. Intrusion upon another’s seclusion or solitude, or into his or her private affairs;

2. Public disclosure of embarrassing private facts about the other person;

3. Publicity which places the other person in a false light in the public eye; and

4. Appropriation, for the defendant’s advantage, of the other party’s name or likeness.

The court ordered the father to pay damages of $100,000  on the tort of invasion of privacy (false light and public disclosure of private facts), in addition to other payments of post-separation adjustment, spousal support, child support, damages for mental suffering and punitive damages.

The Court did not require that proof of defamation be established; rather, the false light must be highly offensive to a reasonable person and the perpetrator must have had knowledge of or acted in reckless disregard as to the falsity of what he or she was posting.

Businesses may also be impacted by this ‘false light’ privacy claim – they may be exposed to claims of vicarious liability for so-called “deep fakes,” employee misconduct, misleading ads or social media marketing, for example — and there is no requirement to prove actual malice or economic harm.

In other words, corporate announcements, internal investigative outcomes, marketing, advertising, financial reporting, etc., may be exposed to scrutiny on how they portray a person – they cannot do so in a “false light”. This applies not only online, but globally.

Basically, it’s a recklessness standard – specific malice or ill intent need not be proved to be successful.

This new development empowers a person to be better able to control his or her information and data, particularly in the public forum.

So far, there has been no floodgate opened in Ontario in family law cases incorporating this new type of claim, especially if there has been online activity in the case, as there often seems to be these days.

However, most litigants and their counsel will be sure, especially in family law and employment cases, will more certainly investigate any online evidence from any available sources.

The Case:

Yenovkian v. Gulian, 2019 ONSC 7279

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