Revenge Porn – Publication of Private Facts
Sadly, the colloquial term “revenge porn” doesn’t need a definition. It’s considered a crime under the Criminal Code (see s. 162.1 – Publication, etc., of an intimate image without consent).
Sometimes, engaging in the action may run afoul of a “morals clause” contained in a commercial agreement (typically contained in an endorsement contract between a company and a performer or athlete where the reputation of the company’s brand is involved). (An example consideration is Zigomanis v. 2156775 Ontario Inc (cob D’Angelo Brands), [2016] O.J. No 5841, 2016 ONSC 7053, affirmed on appeal.)
However, in a still-developing area of law in Ontario dealing with privacy torts, it may also trigger a monetary damages award in the context of a civil claim. In tort law, it falls within a category of privacy torts referred to as publication (or public disclosure) of private facts.
A few cases have set the stage for the elements of this cause of action in Ontario. In Jane Doe 464533 v. N.D., [2017] O.J. No. 60, 2017 ONSC 127, the plaintiff and the defendant had a close personal and romantic relationship for a period of time. After the 18-year-old plaintiff went off to university, the defendant pressured her to provide him with an intimate video of herself and assured her that only he would see it. Unfortunately, she believed him and provided him with the video, albeit reluctantly.
What did he do? The same day he received it, he posted the video to a pornographic website without her knowledge or consent. As if that wasn’t enough, he also watched the video with some of his buddies who were acquaintances of the plaintiff. The existence of the video became known to some of the plaintiff’s friends, and it was removed from the adult website about 3 weeks later. Obviously, there was no way of knowing how many times the video was seen or downloaded or copied.
The plaintiff was devastated and humiliated, she suffered emotional harm from the posting of the video, and she continued to live in fear that the video would resurface and adversely affect her employment, career, or future relationships. She sued her ex-boyfriend for damages and obtained damages in the amount of $50,000 for general damages, $25,000 for aggravated damages, and another $25,000 for punitive damages (note: her damages claim was limited to $100,000 as, at the time – in 2011 – she brought the action under simplified procedure).
The court held that a cause of action for invasion of privacy – in particular, public disclosure of embarrassing private facts about the plaintiff – was also made out:
“One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of privacy if the matter publicized or the act of the publication (a) would be highly offensive to a reasonable person and (b) is not of legitimate concern to the public. The defendant posted on the Internet a privately shared and highly personal intimate video of the plaintiff. In doing so, he made public an aspect of the plaintiff’s private life. A reasonable person would find such activity to be highly offensive. It was readily apparent that there was no legitimate public concern in the defendant doing so.”
In a similar case on almost identical facts (they usually are), Jane Doe 72511 v. N.M., [2018] O.J. No. 5741, 2018 ONSC 6607, 143 O.R. (3d) 277, 53 C.C.L.T. (4th) 289, 2018 CarswellOnt 18310, the court once again recognized the availability of the tort of public disclosure of private facts. The plaintiff was also physically abused by the defendant, including while she was pregnant. On one of many documented occasions, while seven months pregnant, he dragged her down the stairs, choked her, threatened her with a knife, and forced her out of the house. On one such occasion he was arrested and convicted of assault.
That wasn’t enough for this guy. He later posted a sexually explicit video of the plaintiff without her knowledge or consent on a pornographic website. The video was entitled “yellow hoe sucking a big toe.” The plaintiff was clearly visible in the video and by the time she learned about it and persuaded the website administrator to remove it, the video was viewed over 60,000 times (again, it was impossible to know how may times it was otherwise downloaded or shared). When the plaintiff confronted him about the video, his response was “I have a criminal record for life, ur [sic] a[n] internet whore for kife [sic] … fair trade.”
The plaintiff successfully sued the defendant for various causes of action, including public disclosure of private information, for which she specifically obtained damages in the amount of $50,000 for general damages, $25,000 for aggravated damages, and $25,000 for punitive damages.
Publication (or Public Disclosure) of Private Facts – The Legal Test
These revenge porn cases have outlined a legal test for future plaintiffs when suing for publication (or public disclosure) of private facts; accordingly, a plaintiff must prove the following elements:
- That the defendant publicized an aspect of the plaintiff’s private life;
- That the plaintiff did not consent to the publication;
- That the matter publicized (or the act of the publication) would be highly offensive to a reasonable person; and
- That the publication was not of legitimate concern to the public (i.e. sexual relations normally being entirely private matters).
