Post online at your own peril: individuals can now sue for invasion of privacy

In a recent case, the plaintiff’s ex-boyfriend posted a video of her on a porn site.
In a recent case, the plaintiff’s ex-boyfriend posted a video of her on a porn site. iStock.

Canada is not known as a litigious country.

Though our law is highly developed through many decades of judicial interpretation, there are still some areas in which we lag behind countries like the United States.

One such area was, until recently, the tort of invasion of privacy. Quite frankly, there were very few cases in Canada that were based on breaches of invasion of privacy between two individuals.

This was something the Ontario Court of Appeal also examined in the 2012 case Jones. v. Tsige, that dealt with a bank employee snooping repeatedly into the bank account of her spouse’s ex-wife.

In that case, Judge Robert J. Sharpe asked the question: does Ontario law recognize a cause of action for invasion of privacy?

Sharpe noted that although this has been a debate for 120 years, there was no clear answer: “although the individual’s privacy interest is a fundamental value underlying such claims, the recognition of a distinct right of action for breach of privacy remains uncertain.”

While there are five provinces in Canada that do allow an action for invasion of privacy to be brought: British Columbia, Saskatchewan, Manitoba, Quebec and Newfoundland and Labrador, there hasn’t really been a definition of what invasion of privacy really means in Canada which is problematic. After all, how do you bring an action for a tort that hasn’t been defined?

Well, Jones v. Tsige changed that. Sharpe underlined a need for a tort that spoke directly to someone’s privacy being violated by another person, because advances in technology have made it quite easy for people to access and publicize the private information of other people.

Consequently, the Ontario Appeals Court decided to create a new tort called “intrusion upon seclusion.” This new tort would allow one person to directly sue another for monetary damages to be sought for the violation of a person’s private affairs, seclusion or solitude.

A recently decided case by the Ontario Superior Court of Justice validated this new tort, and underlined the importance of it in Canada.

In the case Jane Doe 464533, a former boyfriend of the plaintiff (the person who was suing) posted an intimate video of her on a pornography website without her knowledge or consent.

Although the court in Jones. v. Tsige, voiced the opinion that damages for the tort of intrusion upon seclusion should be up to $20,000, in this case, Judge David G. Stinson found the wrong done to the plaintiff so offensive, he awarded her $141,708.03.

The reason Stinson awarded this amount was because of the ongoing “emotional and psychological effects of the offensive conduct” the plaintiff was suffering due to the “publication of embarrassing private facts.”

As can be seen, this new tort and subsequent cases are important for many reasons, especially as it upholds individual privacy rights.

They’re also important though because the rise of technology and social media easily make possible the publication of private matters, including humiliating and undesirable matters.

This new tort is a way to fight back for those affected, as it will enable those that have been exposed or humiliated online to revert to civil law to sue for invasion into their private lives.

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