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The new privacy tort – Another victory for victims of cyberbullying

cyberbullyingIn the highly-publicized decision of Doe v. N.D., the Ontario court recently granted a victim of cyberbullying significant damages, to compensate her for the serious emotional and reputational harm she suffered in the hands of the defendant.

The defendant was the ex-boyfriend of the plaintiff. When they were 18 years old and while they were still dating, the defendant convinced the plaintiff to make a sexually explicit video of herself and send it to him. He promised her it will only be seen by him. Although she was reluctant to do so, after some pressure from the defendant, the plaintiff relented and sent the video to the defendant. Shortly thereafter, the defendant posted the video on a porn website and sent it to his friends. Needless to say, the plaintiff was humiliated and suffered severe emotional harm. The plaintiff eventually sued the defendant and, after he did not defend the action, the plaintiff brought a motion for default judgment before Justice Stinson.

Justice Stinson began his well-reasoned decision by pointing out the challenges that the law faces in fighting cyberbullying:

In recent years, technology has enabled predators and bullies to victimize others by releasing their nude photos or intimate videos without consent. We now understand the devastating harm that can result from these acts, ranging from suicides by teenage victims to career-ending consequences when established persons are victimized. Society has been scrambling to catch up to this problem and the law is beginning to respond to protect victims.”

The judge then went on to discuss the various legal recourse available to victims of cyberbullying. For example, there are the new sections of the Criminal Code, which make it a criminal offence to post “intimate images” of someone without their consent (I discuss those criminal sanctions in last month’s post ). However, the plaintiff could not make use of these criminal sanctions, because the defendant posted the images years before these laws were passed by Parliament.

In her civil action, the plaintiff raised several claims against the defendant including Invasion of Privacy, Breach of Confidence and Intentional Infliction of Emotional Distress. Notably missing is a claim for defamation. From my experience dealing with similar claims of cyberbullying, a claim for defamation is often the leading cause of action against the defendant (indeed, I have represented plaintiffs in similar cases where we alleged defamation).

In his decision, Justice Stinson found that the defendant had committed the tort of Invasion of Privacy, or more specifically, “Public Disclosure of Private Facts”. His finding essentially expanded the limited tort of Invasion of Privacy to cover situations where the defendant makes information regarding the plaintiff public, in a manner that is “highly offensive to a reasonable person”. This is the first reported case where such a claim was granted in Canada (the claim already exists in the U.S.).

Furthermore, Justice Stinson’s decision raises the bar on the amount of damages that may be ordered in similar cases. In Jones v Tsige, the Ontario Court of Appeal held that the tort of Invasion of Privacy (or “intrusion upon seclusion”) gives rise to relatively small amounts of damages (maxed at $10,000). In his decision, Justice Stinson clearly felt that such award of damages would not adequately compensate the plaintiff for her severe emotional suffering. It also does not provide a sufficient deterrent against other cyberbullies who are engaged in similarly egregious behaviour. After much consideration, the Judge ordered the defendant to pay the plaintiff a total of $105,500 plus legal costs (for a total exceeding $140,000). Justice Stinson was able to order such damages by equating this case to cases of sexual assault, where the victim experiences similar emotional harm.

Given these findings, it is not surprising that the Canadian legal community has been hailing Justice Stinson’s decision as ground-breaking. It is also a real victory for victims of cyberbullying, as it gives them another legal tool to fight back. To quote Justice Stinson’s strongly worded conclusion:

Lastly, I wish to commend the plaintiff for her courage and resolve in pursuing the remedies to which she is entitled. She has experienced considerable psychological pain arising from the events in question, and has been called upon to relive and recount these events in the course of this litigation, thereby reviving painful memories. Given the lack of precedent in Canadian law for such a claim, she had no assurance of the outcome. Quite apart from the personal result for her, her efforts have established such a precedent that will enable others who endure the same experience to seek similar recourse.”

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Maanit Zemel

Internet and Social Media lawyer, commercial litigator at MTZ Law
Maanit Zemel is a commercial litigator admitted to practice in Ontario and New York, with substantial experience and expertise in Internet and social media law, including Canada’s Anti-Spam Legislation (CASL), privacy, online defamation, cyberbullying and cyber-security. Read more.
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