More civil liability for privacy complaints in Ontario after landmark case

FOCUS ON PRIVACY - Tort of 'publicly placing a person in false light' recognized

More civil liability for privacy complaints in Ontario after landmark case

A family law case in Ontario’s Superior Court of Justice has added a new tort to Ontario law by focusing on “the best interests of the children, the invasion of their privacy, and the effects of cyberbullying.” 

The ruling could have implications for publishers and public statements by businesses — even as businesses are also seeing tighter regulatory risk on privacy, say lawyers from Torys LLP.

“Ontario law now recognizes the privacy tort of ‘publicly placing a person in false light,’” wrote Torys lawyers in a memo. “This privacy tort goes beyond existing law on defamation. It protects an individual’s right to control how they are publicly presented to the world.” 

The case involved a family’s parenting issues, such as child and spousal support. But the claim also included intrusion on seclusion and invasion of privacy, because the father in the case posted YouTube videos of his interactions with his children, against court orders. The father also created cybercampaigns against the mother and her family, as well as a lawyer and a judge, said the decision, Yenovkian v. Gulian, 2019 ONSC 7279. The father, who was not represented in court, was also accused of mocking one of his children with a neurological disorder. (Lawyer Shawn Richard, who acted for Gulian, declined to comment).

“Children are particularly vulnerable to the online postings of a parent which expose the intimacy of a child’s life which only a parent should have access to,” wrote Justice Freya Kristjanson in the decision. “Public posting of recorded in-person and Skype access visits with children, photographs of parental moments, and written and video commentary about the children in a cyberbullying campaign directed to undermining the spouse in family law litigation, viewed objectively, is an offensive intrusion on the privacy of the child.” 

Citing Jones v. Tsige, 2012 ONCA 32, Kristjanson noted that the Ontario Court of Appeal recognized “one aspect of tortious invasion of privacy in the form of intrusion upon seclusion.” But a so-called four-tort catalogue in privacy law dates back to 1960: 1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs; 2. Public disclosure of embarrassing private facts about the plaintiff; 3. Publicity which places the plaintiff in a false light in the public eye; 4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness.

The fourth form of invasion of privacy was already actionable in the province with Athans v. Canadian Adventure Camps Ltd., 1977 CanLII 1255, while the second form was dealt with in Jane Doe Doe 464533 v. N.D. (“Jane Doe 2016”) and Jane Doe 72511 v. N.M., 2018 ONSC 6607, Kristjanson said. 

“With these three torts all recognized in Ontario law, the remaining item in the ‘four-tort catalogue’ of causes of action for invasion of privacy is the third, that is, publicly placing the plaintiff in a false light,” wrote Kristjanson in the decision. “I hold that this is the case in which this cause of action should be recognized.” 

Kristjanson concluded that Yenovkian v. Gulian, 2019 ONSC 7279 was “the exceptional case,” writing that  “the invasion of privacy was intentional, subjectively intended to cause harm, and without lawful justification.” The court ordered Yenovkian to pay damages of $100,000  on the tort of invasion of privacy (false light and public disclosure of private facts), in addition to other payments of post-separation adjustment, spousal support, child support, damages for mental suffering and punitive damages.

“Mr. Yenovkian’s conduct must not only be punished but it should be denounced, and it should be deterred,” wrote Kristjanson. “A significant award of punitive damages may serve to deter Mr. Yenovkian, since the court orders have had no effect in deterring his conduct.  It will also serve to warn other litigants, both represented and self-represented, that cyberbullying another party online, in family law proceedings where the interests of children are in issue, will not be tolerated.” 

The court’s interpretation of the tort of false light and public disclosure of private facts follows a similar formula as what is used in the United States, where proof of defamation is not required, but the false light must be “highly offensive to a reasonable person” and the actor “had knowledge of or acted in reckless disregard as to the falsity,” wrote Torys. For businesses, the firm said the tort could mean that businesses could face claims of vicarious liability for “deepfakes,” employee misconduct, misleading ads or social media marketing, for example — and there is no requirement to prove actual malice or economic harm.

Torys senior associate Ronak Shah says that as the tort was tucked away in a family law decision, it’s still making waves as commercial lawyers dissect how it might affect areas like class action law. 

“Not only on the internet — but also within the companies’ public announcements and things like that — we want to make sure that they are portraying the person correctly: As they are, and not in a false light,” he says.

 “It’s making sure statements about investigations, departures of officers or employees, are done in a way that is correct and . . . .  that they have processes in place that actually vet these kinds of statements.” 

Policies will also be needed so employees know what they are allowed to say and when, and how to get permission, says Shah. 

“Especially since it’s not only a malice mandate, it’s a recklessness standard,” he says. 

Some issues from the decision that might get clarified through further case law are the damages framework for this tort, and what defences are available, says Shah. Although the tort itself mirrors U.S. law, Canadian approaches to issues such as risk analysis and s.8 rights will shape the laws here, Shah says.

“For a long time, this tort wasn't recognized partly because of the overlap with defamation. Especially with the new applications like deep fakes, this tort will take on a new light,” he says. 

“It basically helps individuals get better control of how they are portrayed, and that's a general trend that we're seeing in terms of even privacy legislation. It’s moving towards ensuring that organizations respect individuals’ control over their data.”

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