When it comes to the internet, our privacy is at risk with every keystroke. In recent years, courts and legislators have been attempting to fill in the legal gaps posed by our ever-increasing online activity to share the most minute aspects of our lives.
A particularly troubling issue that has arisen is the distribution or sharing of intimate or sexually-explicit content without the consent of the individual depicted. This is often referred to as “revenge porn” or “cyberexploitation,” and it is a criminal offence. However, until very recently, no civil recourse has been available. In short, those who share these photos may go to jail, but no monetary compensation for the psychological harm caused by their actions could be sought by the victims. Only Manitoba’s legislators have tackled this issue, creating the tort of “non-consensual distribution of intimate images” late last year. This past week, the Ontario Superior Court weighed in and established a precedent that could provide a civil remedy based on breach of confidence and invasion of privacy to victims of these crimes.
The facts of the case, Jane Doe 464533, are as follows: the defendant was a former boyfriend of the plaintiff’s who convinced her to send him an intimate video of herself. She was hesitant but agreed to do so, only after the defendant assured her that he would not show the video to anybody else. Less than a day after receiving the video, the defendant posted it on a pornography website and titled it “college girl pleasures herself for ex-boyfriend’s delight.” He also showed it to several of their mutual acquaintances.
The video was online for three weeks before the defendant removed it after the plaintiff contacted his mother. The defendant admitted to posting the video. No evidence was presented to show that he had any remorse for his actions (Note: The defendant did not present a defence to this case and, therefore, we only have the facts as presented by the plaintiff to rely upon). As a result of the video being shared online, the plaintiff experienced significant psychological harm. She was taken to a crisis centre, suffered from depression and required counselling. Even in present day, she worries that the video could resurface and affect her employment.
The Court found that, in posting the video, the defendant made public an aspect of the plaintiff’s private life and that a reasonable person would find this action highly offensive. The monetary award in this case totaled over $140,000. (It is important to note that this case was started under simplified Procedure which caps the potential damage claim. As such, cases based on similar facts could lead to larger awards depending on the venue chosen to pursue the claim.) The court also ordered that the defendant destroy any images he still possessed of the plaintiff.
This judgment represents an important step forward in an era where we are increasingly aware of how easily our privacy can be infringed upon. Monetary awards in these types of cases will serve to compensate victims for the harm caused by the defendant’s actions and will deter others from doing the same. What money cannot do is change how readily we, as a society, consume material that violates others’ privacy. Revenge porn and celebrity photo leaks garner much attention and media coverage of it should be curbed.
The ruling in Jane Doe 464533 asserts that posting this sort of non-consensual intimate material online is an invasion of privacy and a breach of confidence. As this area of the law evolves, I would hope to see these sorts of actions likened to sexual battery and treated as such. A move towards this sort of treatment will allow for a robust legal framework to emerge, leading to a prevention of these types of wrongs from continuing to occur.
Reasonable Doubt appears on Mondays.
A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.
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