Privacy Means Privacy: A New Tort Recognized

 by Erik Holmstrom and Peter Major, Q.C., Q.Arb

Since Edward Snowden’s leaking of highly classified information against the United States’ National Security Agency in 2013, both companies and citizens alike have begun taking steps to protect privacy at all costs. Even recently this year, both Google and Apple introduced new technology to prohibit the tracking of their users without permission. Despite such steps, people are nonetheless susceptible to their information or private photos being publicized or distributed by others, sometimes even by those they trust the most.

In ES v Shillington, 2021 ABQB 739, a recent Court of Queen’s Bench Decision, Justice A.B. Inglis recognized the need to remedy such privacy concerns and established a new tort in Alberta aimed at protecting individuals’ privacy.

In this case, the Plaintiff and Defendant, were in a long-term relationship riddled with sexual and physical abuse. The Defendant was an officer in the Canadian Armed Forces. In the beginning, during a period of long distance, the Plaintiff sent intimate photos to the Defendant, as a private gift. She provided the images to him due to their separation caused by his military deployment but with the understanding between them that he would not distribute the images in any way.

Eventually, as the relationship collapsed, the Plaintiff was shocked to discover these images online, and was eventually even confronted by a neighbour after being recognized on one of the many websites that the images were posted to. As a result, the Plaintiff suffered ongoing psychological injuries that negatively affected her life. She later sued the Defendant, who failed to respond to the lawsuit, and asked the court to recognize the tortious act of “Public Disclosure of Private Facts”.

While Alberta had already implemented the Protecting Victims of Non-Consensual Distribution of Intimate Images Act, a statute in force since 2017 that prohibits the non-consensual distribution of intimate images, the court was unable to retroactively apply the statute against the Defendant given that the photos were distributed long before the act came into effect. Moreover, Justice Inglis noted that the statute only protected the distribution of “intimate images”, a narrowly defined term under the act that limited the remedy solely against images containing nudity or sexual activity. This loophole left other arguably private information, such as financial or health records, potentially unprotected.

Justice Inglis further explained that torts, such as defamation and intentional infliction of mental distress, were meant to address different circumstances, and explained that the tests for these torts created unnecessary barriers to a remedy.

Finally, the court noted that the right to privacy had continued to expand in recent years, and was incorporated in both the Criminal Code and Charter, among other statutes. As such, the court noted that this proposed tort was an appropriate subject for judicial adjudication given that the proliferation in technology made way for the potential for new breaches, thereby requiring “adequate legal protection”.

Alberta is not the first province to recognize this new tort. In fact, Ontario, has recognized the need to respond more fully to privacy breaches since 2018. In Jane Doe 72511 v Morgan, 2018 ONSC 6607, the Defendant posted illicit photographs of the Plaintiff on a pornographic website without consent. In recognizing a lack of available remedy or statute, the court approved the tort thereby prohibiting posting intimate images of another without consent.

In the Novia Scotia case, Racki v Racki, 2021 NSSC 46, the Defendant posted a memoir online, which included anecdotes about his ex-wife’s suicide attempts and previous addiction. Given the Plaintiff’s humiliation towards the publication, and lack of a modern remedy, the court stated that society needed to evolve to the changes in technology and approved the tort of public disclosure of private facts. Racki appeared to widen the scope of this tort, given that the disclosed private information was not “intimate” or “sexually explicit” in nature.

Based on the need for an appropriate remedy, the need to respond to the wrongdoing, and the fact that the subject matter was appropriate for judicial consideration, Justice Inglis confirmed the right of action for Public Disclosure of Private Facts.

Therefore, in order to prove liability, Justice Inglis established that a plaintiff must meet the following test, and prove that:

            (a) the defendant publicized an aspect of the plaintiff’s private life;

            (b) the plaintiff did not consent to the publication;

            (c) the matter publicized or its publication would be highly offensive to a
                  reasonable person in the position of the plaintiff; and

            (d) the publication was not of legitimate concern to the public.

Ultimately, the Plaintiff was successful in her action, and awarded $80,000.00 in general damages plus $50,000.00 in punitive damages and $25,000.00 aggravated damages.

While both the Criminal Code, and the Protecting Victims of Non-Consensual Distribution of Intimate Images Act protect citizens from having their intimate images distributed online without consent, the new tort appears to broaden the scope of what interests are protected, and leaves the door open for other private information to be protected against unwanted distribution.

The improper use of private information continues to be a growing area of law. This new tort falls into the closely related category of other torts:

•        Intrusion upon the plaintiff’s seclusion or solitude, or into his private
      affairs.
•       Publicity which places the plaintiff in a false light in the public eye.
•       Appropriation, for the defendant’s advantage, of the plaintiff’s name or
      likeness.

While it is useful to have multiple means of addressing the improper use of private information, it is equally important to make sure the correct tort is applied in the correct circumstance. McLennan Ross has considerable experience litigating in this area and is well equipped to assist you if you encounter a concern with privacy issues. Please contact Erik Holmstrom, Peter J. Major,Q.C., Q.Arb., or our broader commercial litigation group for further assistance.