The tort of Public Disclosure of Private Information protects someone from having private information disclosed about them publicly.
In September 2021, the Alberta Court of Queen’s Bench released its decision in ES v Shillington. Noteworthy about this case is that the Court recognized a new tort: Public Disclosure of Private Facts.
The case of ES v Shillington is what we often call a “revenge porn” case. The parties create and share intimate images with each other during the relationship. When the relationship ends, one party shares these images online without the other person knowing or consenting. In this case, the relationship was also abusive. And the plaintiff successfully brought claims for assault, battery, sexual assault and intentional infliction of mental distress.
What is the tort of Public Disclosure of Private Facts?
This tort protects someone from having private information disclosed (shared) about them publicly. To prove this tort, a plaintiff must show:
- the defendant publicized an aspect of the plaintiff’s private life, and
- the plaintiff did not consent to the publication, and
- the published material or its publication would be highly offensive to a reasonable person in the position of the plaintiff, and
- the publication was not of legitimate concern to the public.
If there is an issue as to whether the information is private, the Court suggests the following question as a starting point (taken from other case law): What would a reasonable person feel if they were placed in the same position as the claimant faced with the same publicity?
What are the remedies for someone whose private information has been shared publicly? If the plaintiff is successful, the court can order an injunction demanding the defendant remove all published information. The court can also award money damages to the plaintiff for pain and suffering, aggravated damages (where the behaviour is malicious), punitive damages (to punish the defendant), out-of-pocket expenses and more, depending on the facts of the case.
In the case of ES v Shillington, the court awarded damages to the plaintiff. I should note that these damages covered two other torts as well (breach of confidence and mental distress). The damages for all three were:
- general damages for pain and suffering of $80,000
- aggravated damages of $50,000
- punitive damages of $50,000
- special damages for out-of-pocket expenses
These are significant damages! Which signifies how serious the court treats this behaviour.
How do the courts consider this tort?
Already, one other case in Alberta has considered this new tort. LDS v SCA is also a revenge porn case. The Court considered circumstantial evidence, as the defendant denied he had posted the images, but found on a balance of probabilities the defendant had committed the tort. The Court awarded general damages of $80,000, aggravated damages of $25,000 and punitive damages of $25,000.
Courts across Canada have also adopted this tort. And while the cases in Alberta are about revenge port, this tort could apply in situations broader than sharing intimate images.
In a 2021 Nova Scotia case, the ex-wife of an author successfully proved the author committed this tort. The book, a self-published memoir, included details of the ex-wife’s addictions and suicide attempts. The court found this to be private information shared publicly. The court ordered the defendant to remove sections from his book that shared this information before continuing sales of the book. The court also awarded general damages of $18,000 and aggravated damages of $10,000.
What other laws address the issuing of sharing intimate images?
Alberta’s Protecting Victims of Non-Consensual Distribution of Intimate Images Act came into force on August 4, 2017. If someone distributes an intimate image without the consent of the person pictured, they commit a tort against that person. The person pictured (the plaintiff) can sue the distributor (the defendant) in civil court. The plaintiff does not need to show they suffered any damages or losses. The plaintiff simply needs to prove to the court on a balance of probabilities (the sharing more likely happened than didn’t) that there was distribution without consent.
If the plaintiff is successful, the court can:
- award money damages to the plaintiff
- order the defendant to account for any profits they earned by distributing the image without consent
- issue an injunction against the defendant (such as removing all postings of the image)
So why didn’t the plaintiff in ES v Shillington bring a claim under this law? Because the sharing of images in that case happened before this law came into force – the publications took place between 2006 and 2016. Even though the court heard the case in 2021, it looks at the law at the time the event took place (unless the new law says it applies retroactively).
Canada’s Criminal Code also makes it a criminal offence to publish, share, sell, etc. an intimate image without consent. The Canadian government added this offence in section 162.1 in 2014. The offence carries a prison term of up to 5 years. The only defence is that the behaviour behind the charge serves the public good.
In the case of ES v Shillington, we do not know if any criminal charges were laid. However, the criminal law system does not offer a remedy for the victim in the same way civil court does. For example, if the victim suffered physical or mental injuries, the criminal law system generally does not compensate the victim. (There may be some limited financial benefits for victims of crime – check with your provincial victims’ services units.) The victim can start a civil claim for the same behaviour.
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Disclaimer
The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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About Jessica Steingard
