Legal Blog

Privacy

Some 60 years ago, American writers argued that the law ought to recognize the right to privacy. This argument generated many court decisions, ultimately culminating in an article by Professor Prosser, and adopted by the Restatement (Second) of Torts (2010), delineating a four-tort catalogue of privacy torts:

1. Intrusion upon the plaintiff’s seclusion or solitude, or into his or her private affairs.

2. Public disclosure of embarrassing private facts about the plaintiff.

3. Publicity which places the plaintiff in a false light in the public eye.

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

Ontario law followed along, but of course more slowly. Three of the four torts have already been recognized and the fourth, “false light publicity”, was front and centre in Yenovkian v. Gulian 2019 ONSC 7279.

Examples

Before we deal with this case, we will explain the other three privacy torts.

The first, name or likeness appropriation (4^th category), was recognized in Ontario in 1977: Athans v. Canadian Adventure Camps Ltd. (1977), 17 O.R. (2d) 425 (HCJ). A public relations firm used, without his permission, a picture of an expert water skier in the course of a turn.

The second, intrusion upon seclusion (1^st category), was recognized in Ontario in 2011 and upheld on appeal: Jones v. Tsige (2012) 108 O.R. (3d) 24 (C.A.). The defendant, a bank employee, had been peeking (174 times over 4 years) at the banking records of the plaintiff, who was the former wife of the defendant’s common law partner.

The third, public disclosure of embarrassing private facts (2^nd category), was recognized in 2016: Jane Doe 464533 v. D. (N.) 2016 ONSC 541. The male defendant published intimate videos of the female plaintiff on internet pornography sites. The plaintiff, who had been involved in a relationship with the defendant, had consented to the videos being made, but most certainly never consented to their publication, either before or after the relationship ended.

Nasty

Yenovkian arose out of a family law dispute. It dealt with the usual family law issues such as custody, access, support, equalization, and property. It also dealt with a counterclaim for (i) a restraining order, (ii) damages for breach of privacy and intentional infliction of mental suffering, and (iii) punitive damages.

To give the reader some taste of husband’s conduct, we reproduce the trial judge’s summary of that conduct:

• “attacks on (wife), including posting (her) image and those of her parents and children online. He has accused her of abusing the children, drugging the children, slapping the children, of defrauding the government, of forging documents, and other criminal offences,
• publicizing these attacks to members of her church, friends, her parents and their business associates, and the general public on the internet,
• attacks on the administration of justice in this case involving wife, including on a judge, her lawyer and her witnesses at this trial,
• public attacks on her parents, whom she loves,
• publicly exposing her children to harm and ridicule on the internet,
• reporting unfounded allegations to the police, the school, government authorities and Children’s Aid Societies, in Canada, the U.S. and the UK, and
• the continued flouting of court orders directed at stopping the conduct.”

Although husband’s conduct in this summary seems bad, the full facts demonstrated conduct that was far worse.

False Light 

The judge recognized the third category of breach of privacy: publicly placing another in false light if doing so would be highly offensive to a reasonable person and the defendant either knew of the false light or acted in reckless disregard of it.

The judge noted that the false light category has much in common with the tort of public disclosure of private facts. They share the common elements of publicity that is highly offensive to a reasonable person. The principal difference is that disclosure of private facts involves true statements and false light publicity involves false or misleading claims. The judge noted that it would make no sense to recognize the tort of an invasion of privacy for publishing true facts, but refuse to recognize the tort of an invasion of privacy for publishing false facts.

The judge also noted that the facts giving rise to this cause of action might often be defamatory, but defamation was not required. As a corollary, defamation defences do not apply. It is sufficient to show that a reasonable person will find the defendant’s actions to be highly offensive. “The wrong is in publicly representing someone, not as worse than they are, but as other than they are. The value at stake is respect for a person’s privacy right to control the way they present themselves to the world.”

Findings

The judge found that husband had breached both the second and third categories of invasion of privacy (i.e. false light and the public disclosure of private facts) in that some of the statements made about wife and her family were false and some were true, but private.

The judge also found that wife established the tort of intentional infliction of mental suffering. Husband’s conduct caused a visible and proven illness to wife resulting in nightmares, mental stress, hyper vigilance, and an inability to sleep. The judge held that husband’s conduct was highly offensive, intentional, flagrant, outrageous, and calculated to produce the distress and humiliation that it did.

Damages

The Court of Appeal in Jones had limited the high end of a damages award for intrusion upon seclusion to $20,000. The trial judge recognized this, but noted that the false light publicity tort was more akin to defamation and that, accordingly, general damages for the tort of placing a person in a false light should depend upon the same factors as for defamation, namely:

• the nature of the false publicity and the circumstances in which it was made,
• the nature and position of the victim of the false publicity,
• the possible effects of the false publicity statement upon the life of the plaintiff, and
• the actions and motivations of the defendant.

Given what the judge had already set out regarding the appalling nature of husband’s conduct and the effect of it on wife, she set damages for intentional infliction of mental suffering at $50,000 and for the tort of invasion of privacy (both categories) at $100,000.

The trial judge then turned to punitive damages. Again, she referenced husband’s long campaign of cyber bullying and his other reprehensible conduct. She also referenced publicly distributed invective against wife and against the administration of justice, through attacks on a judge, a lawyer, and witnesses. The judge noted that husband’s conduct must not only be punished, it should be denounced and deterred. She set punitive damages at $150,000 after taking into account the compensatory damages that she had already awarded.

Collection

Will wife be able to collect all of her awarded damages? Had this case dealt only with damages, we would have thought not. However, as initially stated, this case also dealt with property and monetary issues and we suspect that the damages will be deducted from money that might otherwise have gone to husband either from the matrimonial home or through equalization.

 

Image courtesy of  kolobsek.

Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.