“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… Society has been scrambling to catch up to this problem and the law is beginning to respond to protect victims” (Jane Doe 464533)
Although there is no civil legislation currently in place to address the non-consensual distribution of intimate images in Ontario, the Courts have begun to recognize the need for civil action through common law. Beginning in 2016, the Courts in Ontario have shown willingness to allow civil action and award damages to people who have had their intimate images distributed without their consent.
Since this development, there have been two important cases in Ontario which involved civil action against the non-consensual distribution of intimate images: Jane Doe 464533 and Jane Doe 72511. We’re going to go into the first decision here. A review of the second can be found here.
Jane Doe 464533 v. D. (N.)., 2016 ONSC 541
Court: Ontario Superior Court of Justice
Date of Decision: January 12, 2016
In 2016, the Ontario Superior Court of Justice heard a case involving an 18-year-old female, whose name was kept anonymous during Court proceedings. The 18-year-old, ‘Jane’, had recorded an intimate video of herself in November 2011, which she shared with her then-boyfriend, the defendant, with the intention that only he would have access to the video. A month later, once their relationship ended, the defendant then posted the video on a pornography website without Jane’s consent. The video was then available online for three weeks, and the number of view counts and downloads could not be determined.
During the proceedings, legal counsel for Jane raised multiple causes of action on Jane’s behalf including breach of confidence, intentional infliction of mental distress, and invasion of privacy:
- Breach of Confidence
The first cause of action considered by the Court was breach of confidence. To determine if a breach could be found, the Court considered the three elements to a successful claim of breach of confidence. These three elements being that (1) the image must have the necessary quality of confidence about it, (2) the image must have been shared in circumstances which give rise to an obligation of confidence and (3) there must be unauthorized use of that image which causes damage to the person depicted in the image
In considering these elements, the Court found that there was a clear breach of confidence in this case since the video was private, the video was shared within the context of a close relationship, and the sharing of the video without consent caused Jane emotional, psychological damage.
- Intentional Infliction of Mental Distress
The second cause of action considered was the intentional infliction of mental distress. To determine whether this applied, the Court considered the three elements required for this claim to be established. These elements being that the conduct of the defendant must (1) be flagrant and outrageous, (2) calculated to produce harm, and (3) result in a visible and provable injury.
After extensive consideration, the Court found that this case did satisfy these criteria since the posting of the video was flagrant and outrageous, was clearly foreseeable to produce harm, and caused Jane serious psychological harm. Although the standard for this cause of action is high, the Court found that the defendants’ actions did call for, and justify, this claim.
- Invasion of Privacy
The third cause of action raised, invasion of privacy, formed the central argument in this case. In determining whether the defendant was liable for invasion of privacy, the Court extensively considered the case of Jones v Tsige, and the work of William Prosser. The Court determined that this case involved the ‘public disclosure of embarrassing private facts’- a privacy tort identified in Prosser’s work. The Court then considered the elements of the cause of action for public disclosure of private facts as outlined by Prosser: (1) The disclosure of the private facts must be a public disclosure, (2) the facts disclosed to the public must be private facts, and (3) the matter made public must be one which would be offensive and objectionable to a reasonable person.
In considering these elements, the Court determined that they were all satisfied and that the defendant was liable for invasion of privacy (i.e. public disclosure of private facts).
After finding the defendant liable for breach of confidence, intentional infliction of mental distress and invasion of privacy, Justice Stinson issued the judgement for this case and awarded Jane damages of $100,000 ($50,000 general damages, $25,000 aggravated damages and $25,000 punitive damages). In determining this judgment, Justice Stinson considered multiple factors including the age and vulnerability of the victim, the frequency and nature of the assaults, the defendants age and whether he was in a position of trust, and the consequences that sharing the video had on the victim.
It is important to note that the defendant did not attend Court for this case. Although he was contacted and requested to appear in Court, he declined to provide a defence and, as a result, this judgement was recently put aside to allow for the defendant to present a full defence.