In SB v DH, 2022 SKKB 216, the Saskatchewan Court of King’s Bench recognized the tort of “public disclosure of private facts”. This tort provides plaintiffs with a cause of action for the publicizing of private aspects of their life without their consent. This broadens existing statutory torts, which are limited to creating liability for the disclosure of intimate images. The new tort encompasses the disclosure of private information more generally, which could include financial information and medical records.
The recognition of this tort is another example of Canadian Courts expanding common law remedies available to plaintiffs for breaches of privacy. This creates new risks for individuals and businesses that deal with sensitive information on behalf of their customers, clients or employees. This expansion is also a reminder for all individuals and organizations to ensure they are adequately protecting private information that is entrusted to them.
The Decision
The Plaintiff, SB, and Defendant, DH, began a relationship in 2012, married in 2015, and divorced in 2017. Two years later, SB received a phone call from the RCMP informing her that DH had uploaded intimate images of her to a pornography website. DH was criminally charged and plead guilty to publication of an intimate image without consent.
In this separate civil action, SB claimed DH was liable to her for public disclosure of private facts, a common law tort that was not yet recognized in Saskatchewan. She also claimed DH was liable to her for non-consensual distribution of intimate images, a tort established by The Privacy Act, RSS 1978, c P-24, and for intentional infliction of mental distress, both of which the Court found DH liable for.
The Court recognized the tort of public disclosure of private facts, relying on E.S. v Shillington, 2021 ABQB 739 for much of its analysis. This was the first decision in Alberta that recognized this tort.
In recognizing the new tort, the Court identified circumstances that would fall outside of the statutory scheme established in The Privacy Act. This included publicizing images that could fall outside the statutory definition of “intimate”, or publicizing private information, as opposed to images. These situations would not be captured by statute but would nonetheless be highly offensive to a reasonable person and a serious breach of privacy. On this basis, the Court found it necessary to recognize the tort of public disclosure of private facts.
To be successful in a claim for public disclosure of private facts, the plaintiff must prove that:
(a) the defendant publicized an aspect of the plaintiff’s private life;
(b) the plaintiff did not consent to the publication;
(c) the matter publicized or its publication would be highly offensive to a reasonable person standing in the position of the plaintiff; and
(d) the publication was not of legitimate concern to the public.
The tort is actionable per se, in that damages are presumed and do not have to be proven by the plaintiff.
DH admitted he uploaded the images, and the Court found he publicized an aspect of SB’s private life. The Court also found that SB did not consent to him sharing the images. The Court was easily satisfied the disclosure of the images would be highly offensive to a reasonable person, and concluded the publication was clearly not of legitimate concern to the public.
SB was awarded $85,000 in general damages and $75,000 in aggravated damages. Punitive damages were not awarded due to DH already serving 18 months in jail for the same conduct. The Court considered this a “significant” jail sentence.
In his defence, DH raised contributory negligence by alleging SB must share liability due to her agreeing to create the intimate images at issue. The Court found that the Contributory Negligence Act, RSS 1987, c C-31, did not apply to intentional torts, including the public disclosure of private facts and intentional infliction of mental distress. In regard to the Privacy Act and the tort of non-consensual distribution of intimate images, the Court found that consenting to the creation of an image does not remove a person’s right to privacy, and the cause of action under the Privacy Act was made out regardless of any contributory negligence.
DH also raised the defence of voluntary assumption of risk, but the Court found he could not prove that SB had assumed risk of injury by creating the intimate images at issue, nor that she gave consent to relieve DH of liability for said injury.
Main Takeaways
The tort of public disclosure of private facts has been recognized in Alberta[1], Nova Scotia[2], Ontario[3], and now Saskatchewan. Thus far, the majority of cases have involved “revenge porn”, where the defendant has publicized intimate images of a former romantic partner. Private aspects of people’s lives, however, are not limited to intimate images. For example, in Nova Scotia,[4] damages were awarded against a defendant that publicized information in a book about his ex-wife’s drug addiction and suicide attempts.
It is foreseeable that future litigation involving this tort could include the publication financial and medical records, or other personal information created through relationships of confidence. The use of technology for the transfer and storage of sensitive data increases the ability for bad actors to access and publish such information. This may lead to actions not only being brought against individuals, but also employers and businesses for failing to safeguard private information of clients and employees.
Whitelaw Twining is a leading practitioner in tort law and insurance defence. Please contact us to learn more about the expertise we provide to clients in these areas of practice, and how this decision may affect you or your business.
Written by Tanner E. Oscapella and articling student Lane Aman.
[1] ES v Shillington 2021 ABQB 739 à $80,000 in general damages, $50,000 in punitive damages, $25,000 for aggravated damages
LDS v. SCA2021 ABQB 818 à $80,000 in general damages, $25,000 in aggravated damages and $25,000 in punitive damages.
[2] Racki v Racki, 2021 NSSC 46 (“Racki“) à $18,000 in general damages and $10,000 in aggravated damages
[3] Jane Doe 464533 v. ND, 2017 ONSC 127 à $50,000 in general damages, $25,000 in aggravated damages, and 20,000 punitive damages
Jane Doe 72411 v NM à $50,000 in general damages, $25,000 for aggravated damages, $25,000 in punitive damages.
[4] See Racki at note 2.