Alberta Court grants summary judgment for revenge porn – Calgary Lawyers for Public Disclosure of Private Facts
The Alberta Court of Queen’s Bench recently granted summary judgment for revenge porn for the first time, and then confirmed it in a subsequent case.
These rulings involved the non-consensual public disclosure of intimate images, but they set a precedent for other cases involving the public disclosure of other forms of private information, including financial or health information.
The decision in these cases serves as a reminder for any organization that processes personal information to protect that information from unauthorized disclosure.
Recent Revenge Porn Judgment
The most recent revenge porn decision was for LDS v SCA, 2021 ABQB 818 in October 2021.
The Plaintiff and the Defendant were in an intimate relationship from 2011 to 2014. During that time, the Defendant allegedly required the Plaintiff to be naked at all times in their home and to have sex on demand. The relationship was abusive and controlling, “like a master and slave”.
During this relationship, the Plaintiff had professional boudoir photos taken and gave them to the Defendant as a Christmas gift. At the Defendant’s request, the Plaintiff also provided him with sexually explicit photos, and allowed the Defendant to take a series of sexually explicit photos of the Plaintiff. She did not consent to their distribution.
A few months after their relationship ended, the Defendant hacked into the Plaintiff’s personal Facebook account, changed her password, and posted one of the boudoir photos without her consent. He also hacked her personal email account and forwarded the boudoir photos to her boyfriend, along with a sexually suggestive email.
As a result of these actions, the Defendant was charged with Mischief and pled guilty in the Provincial Court of Alberta.
Later, while applying for employment, the Plaintiff discovered her name was linked online to a pornographic website, and her photos had been posted online using a Tumblr account. Various facts pointed to the Defendant as the person who posted these photos online.
After reviewing all the facts of this case, Judge R. Paul Belzil found the case against the Defendant proven on circumstantial evidence, and granted a summary judgment for Breach of Confidence and the Public Disclosure of Private Facts. He awarded damages totalling $130,000.
Public Disclosure of Private Facts in Alberta
In Canada, the tort of Public Disclosure of Private Facts was first introduced in Ontario in 2012. Earlier this year, it was recognized by a court in Nova Scotia in a case of divorce and custody dispute. Alberta is the first western Canadian province to recognize it.
The first Alberta Court decision about revenge porn was in ES v. Shillington, 2021 ABQB 739. This case confirmed the new tort of Public Disclosure of Private Facts. The recognition of new torts by the Courts is rare, so this decision is significant for privacy law.
In the ES v. Shillington case, the Plaintiff and Defendant had been in a long and abusive relationship, during which the Defendant posted intimate photos of the Plaintiff online. The Plaintiff had provided the Defendant with these photos during their relationship with the understanding that they would not be disclosed to anyone else.
Because of these photos being posted publicly, the Plaintiff suffered psychologically and emotionally, including nervous shock, sleep disturbances, post-traumatic stress disorder, and public embarrassment and humiliation. So she pursued an action against the Defendant and sought damages for Public Disclosure of Private Facts.
The Court found that the Plaintiff established Public Disclosure of Private Facts, and that situations involving sexually based wrongdoing result in significant and long-lasting harm to the victim because of their attack on privacy and dignity, and therefore, warrant higher damages.
A total of $155,000 in damages for Public Disclosure of Private Facts and other general, punitive, aggravated, and special damages was awarded. The Defendant was ordered to make best efforts to remove any images of the Plaintiff that he had posted online, and to return all images of the Plaintiff in his possession.
How to Establish Public Disclosure of Private Facts
The Alberta Court uses the following test to establish Public Disclosure of Private Facts:
- Did the Defendant publicize an aspect of the Plaintiff’s private life?
- Did the Plaintiff consent to the publication?
- Would the publicized matter or its publication be highly offensive to a reasonable person in the Plaintiff’s position?
- Was the publication of legitimate concern to the public?
If the Defendant publicized an aspect of the Plaintiff’s private life without the Plaintiff’s consent, and that publication is highly offensive and of no legitimate concern to the public, Public Disclosure of Private Facts can be established.
Why is the Public Disclosure of Private Facts Significant in Alberta?
Alberta’s Protecting Victims of Non-Consensual Distribution of Intimate Images Act came into effect in 2017, but it didn’t apply to situations where the distribution occurred before 2017, or where the private information that was disclosed was something other than intimate images.
The application of Public Disclosure of Private Facts in Alberta is not limited to sexual images. The Court recognized privacy interests in financial, health, and relationship information as well. This makes these recent decisions significant for any organization in Alberta that processes personal information.
Organizations doing business in Alberta must have adequate safeguards in place to protect private information from unauthorized disclosure. A current relevant example is employers that are collecting and storing COVID-19 vaccination information of employees. Unauthorized disclosure of this information could be actionable under the tort of Public Disclosure of Private Facts.
This new tort enables a victim whose private information has been publicly disclosed without their consent to seek damages for that disclosure. It also relieves the Plaintiff of a high burden of proof, as is required by other torts. Damages are presumed when private facts are disclosed without consent.
Osuji & Smith: Calgary Lawyers for Public Disclosure of Private Facts
Are you a victim of revenge porn? Have you suffered the public disclosure of private information, whether sexual images, financial information, health records, or other private information?
The lawyers of Osuji & Smith in Calgary, Alberta are prepared to listen with compassion. We’ll review your case and give you options tailored to your needs. We can help you establish the Public Disclosure of Private Facts.
