NCDII Civil Recourse
Tort law is a vast area of private law under which individuals who have been harmed physically, mentally or financially can seek a remedy directly from the person or group that caused that harm or damage. In most cases, that remedy is money.
Canadian common law torts relating to intimate images and online harassment are evolving. Some examples of novel privacy law torts in Canada include, but are not limited to:
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the tort of intrusion upon seclusion
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the tort of public disclosure of private (embarrassing) facts
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the tort of publicity placing a person in a false light
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the tort of internet harassment
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the tort of misappropriation of image
Beyond these developing privacy law torts, there are a number of Canadian laws that could theoretically be leveraged to establish liability for third-party platforms (for example: Facebook, Instagram, Twitter, etc.) based on its user(s) conduct. For example, causes of action such as negligence, breach of contract, and consumer protection could serve as viable avenues for pursuing civil recourse vis-a-vis third-party platforms and/or search engines in the context of NCDII. For more information on such avenues of recourse, please see the Women's Legal Education and Action Fund (LEAF)'s Report on Platform Liability for Technology-Facilitated Gender-Based Violence.
Disclaimer: This information is general in nature and does not constitute legal advice. We strongly recommend consulting with a lawyer to get legal advice about your specific situation.
Intrusion upon Seclusion:
Jones v. Tsige, 2012 ONCA 32
Purpose:
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Protects individuals from intentional, unjustifiable intrusion by another into that individual’s private affairs, even if there is no resulting financial harm
Elements:
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This tort will be established where:
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the defendant intentionally or recklessly intruded on the plaintiff’s private affairs or concerns;
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there was an absence of lawful justification; and
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viewed objectively, the intrusion was highly offensive, causing distress, humiliation or anguish.
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Case Notes:
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The Court of Appeal noted in this case that (i) only intrusions into matters such as “one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence” are likely to be described as objectively “highly offensive”; (ii) that claims by those overly sensitive or unusually concerned about their privacy were excluded; and (iii) privacy rights are not absolute and will yield to other rights in appropriate circumstances.
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With respect to damages, the Court also noted that damage awards would typically be modest by modern standards, given the intangible nature of the interests protected by the tort.
Public Disclosure of Private (Embarrassing) Facts:
Jane Doe 72511 v. Morgan,
2018 ONSC 6607
Purpose: Addresses the publication of private, true facts in circumstances that would be offensive to a reasonable person
Elements:
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This tort will be established where:
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the defendant publicized an aspect of the plaintiff’s private life;
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the plaintiff did not consent to the publication;
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the matter publicized or its publication would be highly offensive to a reasonable person in the position of the plaintiff; and
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the publication was not of legitimate concern to the public.
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Case Notes:
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The Court acknowledged that the current state of technology enables predators and bullies to victimize others on a much larger scale than in the past and that society is scrambling to catch up to the problem and that the law is only beginning to respond.
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While the Court found that the facts supported liability for both breach of confidence and intentional infliction of emotional distress, it noted that the unique harm caused by the publication of an intimate video requires its own civil remedy.
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See also: Jane Doe 464533 v ND, 2016 ONSC 541.
Publicity Placing a Person in a False Light:
Yenovkian v. Gulian, 2019 ONSC 7279
Purpose: Protects an individual’s right to control how they are publicly presented to the world.
Elements: This tort will be established where a person is portrayed in a false light publicly, and:
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the false portrayal would be highly offensive to a reasonable person; and
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the wrongdoer knew the portrayal was false (or was reckless about its truth).
Case Notes:
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Under Yenovkian, the Court noted that while the publicity giving rise to this cause of action will often be defamatory, proof of defamation is not required. It is enough for the plaintiff to show that a reasonable person would find it highly offensive to be publicly misrepresented as they have been. This is because “the wrong is in publicly representing someone, not as worse than they are, but as other than they are (para 171) [and] “[i]t would be absurd if a defendant could escape liability for invasion of privacy simply because the statements they have made about another person are false” (para 173).
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With respect to the question of damages, the Court found that the $20,000 cap on damages applied in the tort of intrusion upon seclusion was found to not apply to the tort of false light and disclosure of private facts. Instead, in assessing the quantum of damages, the Court was guided by the factors in the seminal defamation case Hill v Church of Scientology and adapted them to the tort of false light:
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The nature and position of the victim of the false publicity,
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The possible effects of publicity statement on the life of the plaintiff, and
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The actions and motivations of the defendant.
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The nature of the false publicity and the circumstances in which it was made.
Implications: This new tort brings about novel consequences in the context of public marketing campaigns and expands the scope of civil liability for media and content publishers, as well as with respect to public statements by companies and privacy complaints. In other words, this tort may impose a positive obligation on businesses and natural persons to ensure the accuracy of information that may be distributed, whether lawfully or through a data breach.
Internet Harassment:
Caplan v. Atas, 2021 ONSC 670
Purpose:
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This tort is meant to address "the most serious and persistent of harassing conduct".
Elements:
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Test for the new tort of internet harassment (note: in outlining this test, the Court noted that “it is only in the most serious and persistent of harassing conduct that rises to the level where the law should respond to it”):
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The defendant maliciously or recklessly engaged in communications so outrageous in character, duration and extreme in degree, so as to go beyond all possible bounds of decency and tolerance;
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The defendant acted with the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff; and
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The plaintiff suffered such harm.
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Case Notes:
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In this landmark case, the Ontario Superior Court of Justice recognized a new common law tort of internet harassment.
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The Court also decided to grant a novel remedy that envisions transferring the defendant’s title and ownership of the offending posts and/or accounts to the plaintiffs for the purpose of removing the offending content from the internet.
Misappropriation of Personality
Krouse v Chrysler Canada Ltd (1973 13 CPR (2d) 28 (ON CA);
Athans v Canadian Adventure Camps Ltd (1977 (34 CPR (2d) 126 (ON SC))
Purpose:
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Prohibits the use of an individual's likeness to promote a product. Four common law provinces also have legislation that prohibit the use of a likeness for advertising: British Columbia, Manitoba, Newfoundland and Labrador and Saskatchewan.
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Claims of misappropriation of personality have typically been advanced by famous people and damages have been tied to the royalties the person in question would have received if they had consented to the use of their likeness.
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However, the Ontario Court of Appeal in Jones v. Tsige (see above) stated that “Ontario has already accepted the existence of a tort claim for appropriation of personality” in reference to the theoretical privacy tort of “appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness” (Jones v. Tsige), suggesting that misappropriation of personality even extends to the non-famous, although we cannot yet say this is definitive across all common law jurisdictions.
Elements:
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The tort of misappropriation of personality can be distilled into three elements:
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The exploitation of the plaintiff’s personality is for a commercial purpose.
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The plaintiff’s personality is clearly captured so that he or she is identifiable.
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An endorsement by the plaintiff is suggested.
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Actions which amount to misappropriation of personality can run a broad spectrum of activity ranging from using the name or photograph of a professional athlete on a product package, to using a singing voice which imitates that of a famous recording artist in a television commercial.
Case Notes:
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In Canada’s common law jurisdictions, if someone misuses your likeness to promote a product, your remedy will depend on where you live and whether or not you are living at all.