A young woman who was awarded $105,500 in damages a year ago after a former boyfriend posted explicit images of her online without consent is back at square one as a result of a decision by the Ontario Divisional Court earlier this month.
Justice Frances Kiteley did not grant leave to appeal a decision by Justice Grant Dow that struck the original damages order imposed by fellow Superior Court Justice David Stinson, in a default judgment released in January 2016.
As a result of the subsequent court rulings though, the 24-year-old woman is now awaiting a statement of defence to be filed by the end of this month, more than four years after her initial statement of claim was issued.
The ongoing litigation is one of the few examples to date in Canada where someone has sought remedies for an online invasion of privacy either through the non-consensual posting of intimate images or hacking of personal data.
On the criminal side, there are virtually no reported cases in Canada involving hacking of someone else’s digital devices. And since a new Criminal Code provision was enacted in December 2014 making it illegal to post intimate images online without consent, there is only one reported case of a prosecution, which ended with a suspended sentence.
For individuals who have had their privacy violated and want to initiate a civil proceeding, “there is definitely a cost-benefit analysis,” says Molly Reynolds, co-counsel for the young woman, known as Jane Doe.
At the same time, the Criminal Code amendment indicates a greater awareness of the damage caused by these types of privacy violations, she suggests.
“What Parliament did is part of the change in that societal conversation,” says Reynolds, a senior associate at Torys LLP in Toronto.
Matthew Milne-Smith, a litigation partner at Davies Ward Phillips & Vineberg LLP in Toronto, says he is not sure the common law is currently very well designed to deal with individual breaches of privacy that are technology based.
“The other way to do it is through legislation,” says Milne-Smith. He points to Manitoba as an example, which enacted the Intimate Image Protection Act last year and makes it a tort for non-consensual distribution of these images.
In areas such as hacking, where personal information is spread publicly and might cause significant distress, there are other impediments, says Justin Safayeni, a lawyer at Stockwoods LLP.
“The preliminary question is who is doing this to me? Figuring that out can be its own battle. There are all sorts of ways to mask it [hacking of personal digital devices],” says Safayeni.
Section 430 of the Criminal Code classifies interruption or obstruction of the lawful use of computer data as a mischief offence. In one of the only reported cases involving this section, a Saskatchewan provincial court judge acquitted a man who posted intimate images online of his girlfriend.
The data was not property capable of theft, said the judge in R v. Maurer, a 2014 decision upheld on appeal. That decision was issued months before the changes to the Criminal Code involving intimate images came into effect.
In the two years since then, the one reported case of this offence is from British Columbia.
In R v. P.S.D., a suspended sentence was imposed last month on a man whom the judge found took partially clothed images of a woman with whom he was in a volatile relationship without her consent.
The defendant sent the pictures to two friends and told them to save the images.
In his ruling, Judge Danny Sudeyko noted that the only related case he was presented with was where a defendant was charged with criminal harassment for posting images online and he also received a suspended sentence.
In the Jane Doe case, the court heard that the former boyfriend posted an explicit video of the then-18-year-old former girlfriend on a pornographic website. It was entitled “college girl pleasures herself.” He also showed the video to male friends who knew the woman. The video was posted for three weeks online before it was removed.
A lawyer for the woman tried unsuccessfully for three years to settle the action.
In the hearing before Stinson, the judge was told the defendant declined to settle and told the woman’s lawyer “to do what she had to do.”
In finding the defendant in default and in his reasons for awarding damages, Stinson stated that the torts of breach of confidence, intentional infliction of mental distress and invasion of privacy were made out.
“In the electronic and Internet age in which we all now function, private information, private facts and private activities may be more and more rare, but they are no less worthy of protection,” wrote Stinson in his decision. “This case involves much more than an invasion of a right to informational privacy; as I have observed, in many ways it is analogous to a sexual assault,” he stated.
After the ruling was issued, the defendant retained counsel and appeared again in Superior Court. In an order issued last September, Justice Dow set aside Stinson’s damages award and issued a sweeping publication ban.
The reasons in Dow’s ruling have not been made public, even though an order he issued promised a “redacted copy” would be released.
No explanation has been provided for the extent of the publication ban, beyond that of protecting the identity of the plaintiff. Law Times contacted the Superior Court and at press time it said it was not yet known if a version of Dow’s reasons could be made public.
Reynolds and two other colleagues at Torys are now representing the woman and sought to appeal the decision to the Divisional Court.
Kiteley denied the request and found that Dow’s conclusion that the defendant should have a chance to answer the allegations on its merits was reasonable.
“The uniqueness of the case and the prospect for a decision on the merits making a contribution to the development of torts in an important area of the law is a compelling reason to conclude that it is a question of general importance that the defendant have the opportunity to participate in a trial,” wrote Kiteley in the decision issued Jan. 9.
The original decision by Stinson relied on a 2012 ruling by the Ontario Court of Appeal in Jones v. Tsige, which defined a new privacy tort referred to as “intrusion upon seclusion.”
The facts in that case involved a bank employee looking at the private banking records of another employee.
The Court of Appeal stated that “absent egregious conduct,” damages for this tort would normally not exceed $20,000. In more serious privacy breaches, though, the damages could be much higher, suggests Milne-Smith.
“The Court of Appeal in Jones did not have in mind pornographic images,” he says.
While the default judgment ruling of Stinson was set aside on procedural grounds, the legal analysis as it pertains to invasion of privacy is still of value, says Reynolds.
“The framework that he used is important. It is part of the progression on how we view these incidents,” she says.