Tort of Unauthorized Public Disclosure of Private Facts in State of Flux Following Overturn of Default Judgment

February 10, 2017

We have recently learned that the Ontario Superior Court of Justice will be re-visiting the January 2016 decision granting default judgment in the case of Jane Doe 464533 v. ND.1  The Jane Doe case was significant because it established the tort of unauthorized public disclosure of private facts.

In Jane Doe, the defendant, the plaintiff’s ex-boyfriend, posted an intimate video of her on a pornographic website without her knowledge or consent.  The defendant had repeatedly asked the plaintiff to make a sexually explicit video of herself to send to him.  For some time, she refused to do so but eventually did after he assured her that no one else would see the video.  Despite the plaintiff’s misgivings and due to the pressure from the defendant, she relented and sent the video to him.  On the same day that she sent the video to him, the defendant posted the video on an internet pornographic website under the “user submissions” section.  The video was available online for approximately three weeks before it was removed.  There was no way to know how many times it had been viewed or downloaded or if and how many times it may have been copied to other media storage devices and/or recirculated.  Both the plaintiff and the defendant were 18 years of age.

The plaintiff was devastated, humiliated and distraught to discover what the defendant had done.  The plaintiff became depressed and required counselling for a year and a half to deal with the emotional fallout from the posting of the video.  After the posting of the video, whenever she encountered the defendant she would react in a manner similar to a panic attack.  The plaintiff was eventually able to complete her undergraduate studies and at the time of the trial, was attending a graduate program.  She remained concerned that the defendant’s actions would put her future career plans in jeopardy should news of these events ever surface.

The tort was described at paragraph 46 of the decision of Justice Stinson as:

“One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of the other’s privacy, if the matter publicized or the act of the publication (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.”

Given these circumstances, the Court held that the elements of the new tort had been established and awarded the plaintiff general damages of $50,000, aggravated damages of $25,000 and punitive damages of $25,000.

The defendant in Jane Doe had been noted in default and had not appeared at the hearing of the motion for judgment.  It was as a result of this motion for default judgment that the new tort was established and the defendant was ordered to pay the substantial damages that were assessed.

Upon learning of the default judgment, the defendant brought a motion to set aside the liability findings and the assessment of damages portions of the judgment. He did not challenge the order requiring him to destroy any existing copies of the video or prohibiting him from publishing, posting, sharing or otherwise further disclosing in any fashion any intimate images or recordings of the plaintiff. In a decision dated September 16, 2016,2 Justice Dow set aside the findings of liability and the assessment of damages made by Justice Stinson on the condition that the defendant pay the costs of the motion to set aside the default judgment of $10,000.

The setting aside of the default judgment was not published and therefore was not known within the legal community because on September 20, 2016 Justice Dow issued an addendum to his decision delaying the release and publication of the decision as the plaintiff intended to seek leave to appeal.

The plaintiff, Jane Doe, then brought a motion pursuant to Rule 62.02(4)(b) of the Rules of Civil Procedure for leave to appeal from the decision setting aside the default judgment.

In a decision dated January 9, 20173, Justice Kiteley of the Ontario Superior Court of Justice dismissed Jane Doe’s motion for leave to appeal.  Justice Kiteley stated at paragraph 57:

“… Indeed, it is a matter of general importance that the facts in this case be the subject of a hearing on its merits so that the significant legal conclusions deriving therefrom will have more weight in future cases as opposed to findings made as a result of a hearing where only one side participated, albeit through the fault of the other side.  The uniqueness of the case and the prospect for a decision on the merits making a contribution to the development of the torts in an important area of the law is a compelling reason to conclude that it is a question of general importance that the defendant have the opportunity to participate in a trial.”

Thus, the law is in a state of flux at the moment as we wait to see if Jane Doe 464533 v. ND proceeds to a full trial on its merits where there will be another opportunity for the Court to address the establishment of the tort of unauthorized public disclosure of private facts and the criteria for damages.  It is also noteworthy that there was some suggestion in Justice Dow’s decision that the defendant was primarily interested in challenging the damages assessment.

Until such time as this occurs, the precedential value of Jane Doe 464533 v. ND remains uncertain.  As it currently stands, the default judgment has been overturned and we have only the possibility that a new judge will recognize the tort of unauthorized public disclosure of private facts as a mean of compensating a victim of such a humiliating invasion of privacy.

Although we cannot say with any degree of certainty what the likely outcome of any re-trial or re-hearing in Jane Doe 464533 v. ND will be, it is our view that given the willingness of the Ontario courts to recognize privacy torts as the Court of Appeal did in Jones v. Tsige4and then, shortly thereafter the Superior Court, in the initial Jane Doe case, the chances are fairly good that the tort will be recognized in the near future whether as a result of the retrial of Jane Doe 464533 v. ND or in another case.

1 2016 ONSC 541
2 2016 ONSC 4920 released January 26, 2017
3 2017 ONSC 127
4 108 OR (3d) 241, 2012 ONCA 32

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