The current nature of social media and, more broadly, the Digital Age, continues to create challenges for legislators and law enforcement officials alike. One such challenge arises in the cyberbullying context, where intimate (or otherwise private) images are uploaded to the Internet. These files can be copied, forwarded and shared instantaneously, making them seemingly impossible to delete retrospectively. There have been developments in both common law in statute.
Manitoba
In order to address this issue and provide recourse for victims of such digital distribution, Manitoba introduced The Intimate Image Protection Act, CCSM c I87, specifically to deal with the non-consensual sharing of intimate images. The Act, which came into force in January, 2016 creates a private right of action with respect to intimate images, which are defined as those over which an individual would have a reasonable expectation of privacy, both at the time the image was recorded and at the time of distribution.
Possible defences to a claim are extremely limited. Section 12 of the Act makes clear that, in an action for the non-consensual distribution of an intimate image, the person depicted in the image does not lose his or her expectation of privacy in respect of the image if he or she consented to the recording or provided the image to another person in circumstances where that perpetrator knew or reasonably ought to have known that the image was not to be distributed to any other person. The result is that the only statutory defence available is where the distribution of the intimate image is in the public interest (and does not go beyond what is in the public interest).
Section 14 of the Act empowers the Court to award damages to the plaintiff, to issue an injunction on publication of the image, to prohibit publication of the name of the person depicted in the image, or to make any other order that is just and reasonable in the circumstances.
In addition to creating a private right of action, the Act also provides for the possibility that certain agencies or organizations may be designated to assist people who have had intimate images distributed without their consent.
The effectiveness and longevity of the Act remains an open question, given that cyber-bullying laws enacted in other provinces have been struck down on the basis of being unconstitutional.
Nova Scotia
Nova Scotia enacted the Cyber-safety Act, S.N.S. 2013, c. 2 in 2013 response to alleged acts of sexual humiliation and cyberbullying against a teenager, Rehtaeh Parsons, who committed suicide in April of 2013.
However, in the recent decision of Crouch v. Snell, 2015 NSSC 340, the Nova Scotia Supreme Court struck down the Cyber-safety Act on the basis that the Act violated sections 2 (the right to freedom of thought, belief, opinion and expression) and 7 (right to life, liberty and security of the perso) of the Canadian Charter of Rights and Freedoms, and that such violations could not be demonstrably justified.
The court described the overreaching definition of “cyberbullying” in the Cyber-safety Act as a “colossal failure” and as a consequence did not minimally impair the right to free expression.
Ontario
On January 21, 2016, the Superior Court of Justice released its decision in Doe 464533 v N.D., 2016 ONSC 54, . Building on the “intrusion upon seclusion” tort recognized in Jones v. Tsige, 2012 ONCA 32, the Court recognized for the first time the new privacy tort of “public disclosure of private facts.”
This case arose from a situation in which the defendant posted a sexually explicit video of the plaintiff to a pornographic website. The video had been supplied in confidence, and with the defendant assurances that it would not be shared. When the plaintiff became aware of it being posted online she confronted the defendant who admitted to uploading it and removed it from the website. The Court noted that although the video was only online for about three weeks, there was no way of knowing how many off-line copies had been made and were still in existence.
In addition to the new tort, the Court also found the defendant had committed the torts of breach of confidence and intentional infliction of mental distress.
In the end, the defendant was noted in default (not having bothered to appear to defend himself) and the plaintiff proceeded by a motion for default judgment. The Court ultimately held that the defendant was liable for the torts of breach of confidence, intentional infliction of mental distress, and invasion of privacy, and granted judgment against the defendant for general damages in the amount of $50,000, aggravated damages in the amount of $25,000, punitive damages in the amount of $25,000 and costs on a full indemnity basis. The court also issued a mandatory injunction that the defendant destroy any and all intimate images or recordings of the plaintiff in his possession, power or control.
However, the defendant brought a motion to set aside the default judgment. In reasons dated September 26, 2016 (Doe v N.D., 2016 ONSC 4920), Dow J. set aside the findings of liability and the assessment of damages, upon payment by the defendant of costs of $10,000. This setting aside of the default judgment was not published at the time, however, because on September 20, 2016, Dow J. issued an addendum to the decision dealing with the release and publication of the decision because the plaintiff intended to seek leave to appeal.
On January, 9, 2017,the plaintiff brought a motion pursuant to Rule 62.02(4)(b) for leave to appeal from that decision setting aside the default judgement. The motion was dismissed (Jane Doe 464533 v N.D., 2017 ONSC 127).
As a result, the current common law (at least in Ontario) is in a state of flux, as jurists wait to see if this case will now proceed to a full trial on the merits. Currently, the original default judgement has been overturned and its value as a precedent is uncertain.
By: Kirsten Thompson, Partner
McCarthy Tétrault LLP
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