NEW PRIVACY PROTECTION IN ONTARIO – I CAN SUE YOU IF YOU PLACE ME IN A FALSE LIGHT IN THE PUBLIC EYE (ONLINE OR OTHERWISE)

There has been a very important development in Ontario privacy law recently, further protecting an individual’s protection from online attacks and predatory behaviour.

In this family law case, the father had posted on social medial negative and highly personal information about the children at issue, in addition to engaging in a social media-driven smear campaign about his former spouse and her family.

The Court would have none of it, awarding $100,000 damages against the father for his relentless and reckless conduct online, particularly against his own children.

Prior to this case, there were three types of ways to sue for protection of your privacy in Ontario: namely:

[1] intrusion upon your seclusion or solitude, or into your private affairs;

[2] public disclosure of embarrassing private facts about you; and

[3] appropriation, for the other person’s advantage, of your name or likeness.

Now there is a fourth category to protect you: publicity which places you in a false light in the public eye.

This has potentially wide-reaching implications for many issues in a person’s life, like relationship breakdowns, being fired from a job, or other disputes with someone that often escalate to online attacks.

Here is an excellent article further explaining this recent case and its potential implications:

More civil liability for privacy complaints in Ontario after landmark case

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

BY Anita Balakrishnan 19 Feb 2020

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 7279The 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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IF I REPRESENTED MEGHAN AND HARRY? YES, ONTARIO WILL PROTECT YOUR PRIVACY. SUE THOSE CHEEKY MONKEYS.

What would I advise the (former) Royals about the paparazzi if they were living in our province?

Ontario allows a person to sue another for damages for invasion of privacy.

This has not always been the case – it is a fairly new development in Ontario. Many assume a right to privacy, but only recently have our Courts recognized a legal right for a person to actually sue another for damages for infringing on privacy.

The legal protection is not called “invasion of privacy”, but rather “intrusion upon seclusion”.

Our Courts now recognize the following types of breach of privacy protections available to mostly everyone in Ontario:

•  intrusion upon a person’s seclusion or solitude, or into that person’s private affairs
•  public disclosure of embarrassing private facts about a person
•  publicity which places a person in a false or misleading light in the public eye
•  appropriation, for another’s advantage, of a person’s name or likeness

In terms of “intrusion upon seclusion” (i.e., breach of your privacy), to succeed in a lawsuit, you would have to establish:

•  the other person’s conduct was intentional or reckless
•  the other person must have invaded, without lawful justification, your private affairs or concerns
•  a reasonable person would perceive the invasion as highly offensive causing distress, humiliation or anguish to you

In a recent Court of Appeal case that recognized this protection and ability to sue, the Court commented: “We are presented in this case with facts that cry out for a remedy. While [the Defendant] is apologetic and contrite, her actions were deliberate, prolonged and shocking. Any person in [the Plaintiff’s] position would be profoundly disturbed by the significant intrusion into her highly personal information. The discipline administered by [the Defendant’s] employer was governed by principles of employment law and the interests of the employer and did not respond directly to the wrong that had been done to [the Plaintiff]. In my view, the law of this province would be sadly deficient if we were required to send [the Plaintiff] away without a legal remedy.”

But there are limits to breach of privacy, too. For example, the Court of Appeal also held that if you are sensitive or unusually concerned about your privacy, you may be excluded from this protection.

Your privacy is protected in most, if not all, aspects of your life, including in the employment context, for example.
Your right of privacy is also not absolute. For example, it may conflict with other privacy rights, such as freedom of information and privacy legislation in effect in Ontario and Canada. If so, or if a conflict may exist, your privacy protection may be limited or compromised.

However, ultimately, your privacy is now recognized by Ontario Courts and you can sue for damages if it is violated, but only after careful consideration of the circumstances and consultation with your qualified litigation lawyer.

 

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COMPROMISING/EMBARRASSING PHOTO OF YOU POSTED ONLINE BY ANOTHER? YOUR PRIVACY MAY BE BREACHED. YOU MIGHT BE ENTITLED TO DAMAGES.

Publishing online very personal or intimate information or images of another may be a very costly mistake.

The Ontario Court is increasingly awarding significant damages against those who do so. For example, in a case called Jane Doe 464533 (the Plaintiff’s name cannot be disclosed), the Court ordered damages and costs totaling $141,000, plus an order for the offending Defendant to destroy any video or images he retains of the Plaintiff and prohibiting him from sharing any intimate images of her. He was also ordered not to communicate with the Plaintiff or any of her family.

The Plaintiff was a young woman in her late teens. Due to pressure from her ex-boyfriend, she agreed to share with him a sexually explicit video of herself. He promised he would not share it with anyone else. However, he subsequently posted the intimate video of her on a pornography Web site without her knowledge or consent. The police refused to criminally pursue the matter.

The Plaintiff eventually sued him for breach of her privacy and, specifically, for his public disclosure of embarrassing private information about her, after attempting to settle the matter with lawyers involved. The Defendant boyfriend did not ultimately defend the lawsuit, so the Court decided the case and awarded damages to the Plaintiff without a challenge to the Plaintiff’s claim. However, the Court reviewed the law and provided a well-reasoned, thorough decision, even though the Defendant did not defend the claim. The case is subject to a publication ban of the name of the Plaintiff.

The Plaintiff relied on fairly recent, emerging cases in Ontario recognizing an expanding ability for a person to sue another directly for breach of privacy, or for “intrusion upon seclusion”.

The Court awarded the Plaintiff $100,000 in damages (noting that she had limited her claim to this maximum amount in the lawsuit). These damages are much higher than the $20,000 “cap” that had previously been established by Ontario’s Court of Appeal in the earlier cases for intrusion upon seclusion.

Therefore, this case expands on privacy protection in Ontario and allows a person to civilly claim and be awarded significant damages when that person’s personal/private information is published online, provided this test is met.

To succeed, it must be proved that “the matter publicized or the act of the publication” is “highly offensive to a reasonable person” and is not “of legitimate concern to the public”.

Undoubtedly the law of privacy in Ontario continues to grow and expand. More cases will be needed to clarify and further develop this law, but this case clearly indicates the Court’s willingness to do so, including for “public disclosure of embarrassing private facts”.

 

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BEING RECORDED IN A PUBLIC PLACE - WHAT ARE MY PRIVACY RIGHTS?

Increasingly businesses (and employers) and public organizations deploy and use ever-improving surveillance technology, including workplace audio and video recording.  Ontario law has remained vigilant and watchful, attempting to balance legitimately-held privacy expectations for everyone against unreasonably invasive privacy intrusion, particularly to foster security, safety and legitimate business or public interests.  

In an important, recent case, a teacher was accused of using a concealed camera to surreptitiously videotape female high school students engaging in “ordinary school-related activities in common areas” of the school. However, the evidence revealed the teacher was recording sexually-based images, without audio recording. The school had posted signs notifying of the use of security cameras throughout the school. The school also had a policy prohibiting its teachers from making videos of students, or otherwise tampering with the school’s surveillance cameras. The teacher was charged with voyeurism under Canada’s Criminal Code, a sexually-related offence.

The Supreme Court declared that privacy, particularly in a public or semi-private place, is not an all-or-nothing proposition in Canada. There can be no absolute expectation of privacy for anyone, at least not in a public, or semi-private, place. The specific circumstances must be considered, which determine what reasonable expectation of privacy should be legally protected in a contextualized approach. 

A person can reasonably expect privacy in a public, or semi-public, place, particularly protection from sexually-driven surveillance, but the specific expectation that will be legally protected must be determined by many factors, such as:

  • the nature of the place and its location;
  • the scope and nature of the conduct by the other party, such as observation or recording;
  • whether the person subject to the conduct had consented to being so observed or recorded, at was even was aware of it;
  • the manner in which the observation or recording was undertaken;
  • the subject matter or content of the observation or recording;
  • any applicable rules, policies or regulations that may prohibit or restrict that conduct;
  • the nature of the relationship, if any, between the person being observed or recorded and the person engaging in the observation or recording;
  • the reason for the observation or recording; and
  • the characteristics of the person being observed or recorded, particularly if the person is a child, youth or a vulnerable person.

The teacher's conviction was upheld by Canada's highest Court. The Court concluded that the young, female students at the school had not consented to being recorded in such manner, or even been aware of him doing so. The teacher held a trust relationship with the students, which he violated, when he knew he was not allowed to make these video recordings of the students, particularly when it was sexually-driven. The female students’ privacy had been violated in the circumstances.

However, the female students, in the circumstances, could not reasonably have expected to be protected absolutely from such misconduct by their teacher. Rather, the Court engaged in a contextual, multi-factored analysis. Accordingly, no one can expect absolute protection, at least not by the criminal law, from being observed or recorded in public, even if it may be sexual in nature. Ultimately, the Supreme Court enshrined a case-by-case analysis, which may, or may not, offer the protection of, at least, Canada's criminal law.

Businesses, particularly employers, and other organizations need to have a clear policy prohibiting surreptitious observation and recording in their places of business, absent consent.  They can also be held vicariously liable for improper, unwanted surveillance being conducted in their place of business, including public areas. 

In addition to potential criminal charges for those who unlawfully observe or record others, including in public spaces, the offender could potentially be held liable civilly in Ontario, particularly for damages for breaching the tort of “intrusion upon seclusion”, or for violating other privacy law.

However, the Supreme Court’s decision in this case has clarified and shaped the law on a person’s reasonable expectation of privacy, particularly if that person is observed or recording in a public, or semi-private, place. 

Ontario Courts and privacy regulators will also continue to review surveillance technology to ensure it is legitimately, justifiably and properly deployed and utilized, minimizing unreasonably invasive infringement on privacy expectation. Surveillance cannot, of course, be prohibited - it benefits the public, if utilized appropriately and legally. However, whether surveillance exceeds the legal boundary by offending an individual’s reasonable expectation of privacy will depend on the specific circumstances and various factors, which will themselves continue to develop as ever-evolving surveillance technology continues to proliferate.

As technology becomes more subtle, sophisticated, accessible and ubiquitous, everyone must remain mindful that their privacy is not absolute and may be subject to observation, or even recording, particularly in public places. Privacy is not an “all-or-nothing” right. Intrusion upon your seclusion should not be viewed as an inevitably necessary part of your rapidly-changing modern life; rather, the law imposes limits which, if offended, may expose the offender to both criminal and civil liability. Privacy is not a lost expectation in our contemporary world, as skeptics contend, but only an evolving one, judiciously straining to keep pace with constantly changing and increasingly innovative technology.   

The Case:

R. v. Jarvis, 2019 SCC 10 (CanLII)

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YOUR PRIVACY - POSTING THAT INTIMATE VIDEO ONLINE WITHOUT YOUR CONSENT - $141,000 DAMAGES AWARDED

Publishing online very personal or intimate information or images of another may now be a very costly mistake. 

The Ontario Court recently granted, in a case called Jane Doe 464533 (the Plaintiff’s name cannot be disclosed), damages and costs totaling $141,000, plus an order for the offending Defendant to destroy any video or images he retains of the Plaintiff and prohibiting him from sharing any intimate images of her. He was also ordered not to communicate with the Plaintiff or any of her family.

The Plaintiff was a young woman in her late teens. Due to pressure from her ex-boyfriend, she agreed to share with him a sexually explicit video of herself. He promised he would not share it with anyone else. However, he subsequently posted the intimate video of her on a pornography Web site without her knowledge or consent. The police refused to criminally pursue the matter.

The Plaintiff eventually sued him for breach of her privacy and, specifically, for his public disclosure of embarrassing private information about her, after attempting to settle the matter with lawyers involved. The Defendant boyfriend did not ultimately defend the lawsuit, so the Court decided the case and awarded damages to the Plaintiff without a challenge to the Plaintiff’s claim. However, the Court reviewed the law and provided a well-reasoned, thorough decision, even though the Defendant did not defend the claim. The case is subject to a publication ban of the name of the Plaintiff.

The Plaintiff relied on fairly recent, emerging cases in Ontario recognizing an expanding ability for a person to sue another directly for breach of privacy, or for “intrusion upon seclusion”.

The Court awarded the Plaintiff $100,000 in damages (noting that she had limited her claim to this maximum amount in the lawsuit). These damages are much higher than the $20,000 “cap” that had previously been established by Ontario’s Court of Appeal in the earlier cases for intrusion upon seclusion.

Therefore, this case expands on privacy protection in Ontario and allows a person to civilly claim and be awarded significant damages when that person’s personal/private information is published online, provided this test is met.

To succeed, it must be proved that “the matter publicized or the act of the publication” is “highly offensive to a reasonable person” and is not “of legitimate concern to the public”.

Undoubtedly the law of privacy in Ontario continues to grow and expand. More cases will be needed to clarify and further develop this law, but this case clearly indicates the Court’s willingness to do so, including for “public disclosure of embarrassing private facts”. 

____________________________

Jason Ward – WARDS PC LAWYERS

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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