We all know becoming “Facebook official” is a pivotal moment for new couples. Publicly changing your relationship status on social media and disseminating images of a relationship is part of the perks of this new era, but what happens when the relationship comes to a screeching halt?
Breakups bring out the worst in us, particularly when we are humiliated and upset. Holding on to nude pictures can lead to the behavior you may later deeply regret. Unless you plan on being single forever, at some point you are going to be in a new relationship, in which case, having and circulating explicit pictures of your ex is weird, plus you may be hit with a Civil Lawsuit under the new tort law in Alberta.
Madam Justice Inglis of the Alberta Court of Queen’s Bench recognized a new tort in Alberta of “public disclosure of private facts,” following the Ontario Superior Court’s lead in Jane Doe 72511 v. Morgan (2018 ONSC 6607). In ES v Shillington, 2021 ABQB 739 (“Shillington”), the Plaintiff and the Defendant were in a long-term romantic relationship and had two children together. Defendant physically and sexually abused the Plaintiff, and she successfully left the relationship in New Brunswick and escaped to Alberta in 2016. During the relationship, the Plaintiff shared private photographs of herself in “various states of undress and engaging in sexual activity”. The images were a private gift to the Defendant, a member of the Canadian Armed Forces, for when the parties were separated by his military deployment. Near the end of the relationship, the Defendant admitted to the Plaintiff that he had posted her images online. The Plaintiff learned that the Defendant had published images as far back as 2006, and as recently as late 2018. As of 2021, the Plaintiff was still able to find some of her private images online. The Plaintiff was identifiable in some of the images, and a neighbor, having seen the images, made distressing sexual comments to her.
The Plaintiff brought a claim against the Defendant for several torts, including for assault, sexual assault, battery, intentional infliction of mental distress, and sought recognition of the tort of public disclosure of private facts in Alberta. The Defendant did not defend the claim and was noted in default in September 2019. The Court directed a special chambers application on several matters, including the alleged new cause of action.
The Court applied the test set out in the Supreme Court of Canada in Nevsun Resources Ltd. v. Araya (2020 SCC 5, para. 237) for guidance on when a new tort may be recognized:
Test 1- The courts will not recognize a new tort where there are adequate alternative remedies.
Test 2-The courts will not recognize a new tort that does not reflect and address a wrong visited by one person upon another.
Test 3- The courts will not recognize a new tort where the change wrought upon the legal system would be indeterminate or substantial.
In applying the test set out above, the court in Shillington held that the facts of the case met each of the Supreme Court’s criteria for recognizing a new tort. In 2017, Alberta introduced the Protecting Victims of Non-Consensual Distribution of Intimate Images Act, SA 2017, c P-26.9. The Plaintiff in Shillington was unable to rely on this statute because this statute “only protects the distribution of intimate images, and the term intimate image is narrowly defined, limiting the availability of this remedy” The Court agreed with the Plaintiff’s submission that the statute also does not protect privately shared sexual images, for example, publication by the Defendant to a WhatsApp group rather than on the internet would not be captured.
Though the Protecting Victims of Non-Consensual Distribution of Intimate Images Act, the court determined that it was necessary to recognize a new tort to deal with situations where:
1. The distribution occurred before 2017, making this Act inapplicable; and,
2. private information other than intimate images are disclosed.
To establish the tort, the following elements must be established:
1. the defendant must have publicized an aspect of the plaintiff’s private life;
2. the plaintiff must not have consented to the publication;
3. a reasonable person in the same position as the plaintiff would be highly offended by the publication; and
4. the publication was not of legitimate concern to the public.
The tort of public disclosure of private facts is actionable per se, in that the Plaintiff is not obligated to prove actual damage or loss, as damages are presumed by when private facts are publicized without consent. In this new tort, private information can be protected in a variety of ways. Sexual and relationship matters, as well as financial and health records, are matters in which individuals have privacy interests.
The recognition of this new tort in Alberta is a stark reminder to businesses too, that they must take extra caution to protect private customer and/or employee information. During the coronavirus pandemic, there are also new privacy and security concerns over QR codes; businesses must ensure that QR codes belonging to customers are not leaked or hacked into, as this would constitute public disclosure of private information.
If you or someone you know has had their private information leaked or inappropriate intimate picture(s) or video(s) shared on social media, do not hesitate to contact Osuji and Smith Lawyers today to discuss how you can put an end to this tort and seek damages/relief.
Author: Lydia Iboko