Can a Person Be Sued For Uploading a Sex Tape to the Internet?

Recent Developments Within the Tort Law of Ontario Now Provide Civil Liability Protection For Wrongful Publication of Personal Facts and Private Images Including the Publishing of Sexual Images Without Consent.

Understanding When Publishing Personal Images of Others May Constitute As Tortious Conduct and Criminal Conduct

Woman in lingerie The evolution of the Internet as well as image and video technology provides risk to those who may record intimate moments such as sexual activities; and accordingly, the criminal law and the civil law are evolving to address improper publishing or distribution of such material.

The Law

While genuinely consenting adults are permitted to engage in conduct that preserves intimate experiences, the subsequent nonconsensual publishing or distribution of such material is addressed by the criminal law, per section 162.1 of the Criminal Code, R.S.C. 1985, c. C-46 as well as within the civil liability realm of tort law as a form of breach of privacy as per Jane Doe 72511 v. N.M., 2018 ONSC 6607 and Doe 464533 v. N.D., 2016 ONSC 541, among other cases, wherein each it was said:

Publication, etc., of an intimate image without consent

162.1 (1) Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty

(a) of an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) of an offence punishable on summary conviction.

Definition of intimate image

(2) In this section, intimate image means a visual recording of a person made by any means including a photographic, film or video recording,

(a) in which the person is nude, is exposing his or her genital organs or anal region or her breasts or is engaged in explicit sexual activity;

(b) in respect of which, at the time of the recording, there were circumstances that gave rise to a reasonable expectation of privacy; and

(c) in respect of which the person depicted retains a reasonable expectation of privacy at the time the offence is committed.

Defence

(3) No person shall be convicted of an offence under this section if the conduct that forms the subject-matter of the charge serves the public good and does not extend beyond what serves the public good.

Question of fact and law, motives

(4) For the purposes of subsection (3),

(a) it is a question of law whether the conduct serves the public good and whether there is evidence that the conduct alleged goes beyond what serves the public good, but it is a question of fact whether the conduct does or does not extend beyond what serves the public good; and

(b) the motives of an accused are irrelevant.

Should a tort of public disclosure of private facts be recognized?

[83]  In 2014, Parliament enacted Bill C-13, the Protecting Canadians from Online Crime Act.  It added the offence of publication of an intimate image without consent to the Criminal Code.[34] An intimate image includes a video recording in which the person depicted is engaged in an explicit sexual activity.  Someone convicted of this offence may be sentenced to up to five years in prison.

[84]  Where misconduct is identified as wrong, harmful and antithetical to an orderly society such that it attracts a criminal sanction, it makes sense that the same misconduct should give rise to a civil remedy.  For example, in the case at bar, N.M. was convicted for his criminal assault of Jane in March 2014, and she has a civil remedy (battery) against him for this same conduct.  The criminal charge is based on the collective interest in deterring and sanctioning violent and anti-social behaviour.  The civil remedy allows the victim to recover damages for their injury.

[85]  Parliament’s criminalization of the publication of an intimate image without consent recognizes that this behaviour is highly offensive and should give rise to a civil remedy for a person who suffers damages as a result of it. The only question is how this is best accomplished.

[86]  I conclude that the best way of fashioning a civil remedy is to adopt the tort of public disclosure of private facts in Ontario.  In doing so I rely on the same reasoning that led the Court of Appeal to recognize the related tort of intrusion on seclusion in Jones v. Tsige.

[87]  The adoption of this tort is consistent with Charter values.  In R. v. Dyment, a case cited in Jones v. Tsige, La Forest J. stated that “privacy is essential for the well-being of the individual. For this reason alone, it is worthy of constitutional protection, but it also has profound significance for the public order”.  As observed by Justice L’Heureux-Dubé, privacy is “an essential component of what it means to be ‘free’”.[35]

[88]  It is difficult to conceive of a privacy interest more fundamental than the interest that every person has in choosing whether to share intimate or sexually explicit images and recordings of themselves.  Every person should have the ability to control who sees images of their body.  This is an important part of each individual’s personal freedom to decide how they share the most intimate aspects of themselves, their sexuality and their bodies.  A cause of action which protects this privacy interest is rooted in our deepest values as a society.  Failing to develop the legal tools to guard against the intentional, unauthorized distribution of intimate images and recordings on the internet would have a profound negative significance for public order as well as the personal wellbeing and freedom of individuals.

[89]  The Supreme Court has already recognized that control over a person’s image is consistent with Charter values.  Twenty years ago, in Aubry v. Éditions Vice-Versa inc., the Supreme Court of Canada confirmed that the right to one’s image is an element of the right to privacy under s. 5 of the Quebec Charter of Human Rights and Freedoms.[36]  In Aubry, the defendant published a picture of a woman in a public place and published it in a magazine dedicated to the arts.  There was no suggestion that the photo itself, or the text accompanying it, was in any way defamatory.  The plaintiff was however clearly identifiable in the photograph, and her permission was not sought before it was published.  A majority on the Court concluded that “the artistic expression of the photograph, which was alleged to have served to illustrate contemporary urban life, cannot justify the infringement of the right to privacy it entails”.  The Court furthermore noted that this interpretation of the right to privacy in a person’s image under the Quebec Charteris consistent with the liberal interpretation given to the concept of privacy … in past judgments of this Court”.[37]

[90]  I am not suggesting that the civil remedy upheld in Aubry would be available in this case in the absence of an equivalent common law tort.  Section 5 and 49 of the Quebec Charter create a much broader remedy for unauthorized use of personal images than what is sought in this case. The Supreme Court’s recognition of the compatibility of a right to privacy in a person’s image with other privacy rights in Aubry is nonetheless important.  It shows that protection of an individual’s image is a component of their personal privacy interest.

[91]  The recognition of a civil right of action arising from the unauthorized posting of intimate or sexually explicit images or recordings is not incompatible with any statutory scheme for the protection of privacy rights.  It would, on the contrary, complement the statutory framework already in place in s. 162.1 of the Criminal Code.

[92]  I have considered whether it is up to the provincial legislature to create a statutory remedy to address circumstances like those in this case, and that its failure to do so represents a conscious policy decision with which the courts should not interfere. I reject this argument for the same reason that the Court of Appeal rejected it in Jones v. Tsige.  Manitoba is the only Canadian province which has enacted legislation creating a statutory tort of non-consensual distribution of intimate images.[38]  As noted in Jones v. Tsige, privacy laws in other provinces recognize a broad right to privacy but leave it to the courts to determine whether any particular invasion of one person’s privacy by another will give rise to any remedy.  Given this legislative context and the need to identify legal remedies for the social ill of revenge porn, I cannot conclude that the absence of an Ontario equivalent to the Manitoba Intimate Image Protection Act prevents the court from recognizing a tort for public disclosure of private information.

[93]  A cause of action for public disclosure of private facts represents a constructive, incremental modification of existing law to address a challenge posed by new technology.  As Stinson J. aptly observed in Jane Doe 464533:

In recent years, technology has enabled predators and bullies to victimize others by releasing their nude photos or intimate videos without consent.  We now understand the devastating harm that can result from these acts, ranging from suicides by teenage victims to career-ending consequences when established persons are victimized.  Society has been scrambling to catch up to this problem and the law is beginning to respond to protect victims.[39]

[94]  A strength of the common law is its ability to evolve and adapt to changing circumstances.  Of course new remedies should not simply be invented willy-nilly. But the tort of public disclosure of private facts is hardly new or novel.  It has existed in U.S. law for decades.  Despite its vintage, it is well-suited for use in the context of internet posting and distribution of intimate and sexually explicit images and recordings.  It is the cousin to another privacy tort already recognized in Ontario, intrusion on seclusion.  As such it is an appropriate, proportionate legal response to a growing problem enabled by new technology.

[95]  Finally, failing to provide a remedy in this case would deprive Jane of any meaningful recourse in the face of a deliberate and flagrant breach of her privacy rights. In Jones v. Tsige, the Court of Appeal characterized Tsige’s actions in accessing Jones’ personal banking records as “deliberate, prolonged and shocking”, and said that the case cried out for a remedy. But, in that case, Tsige took no steps to record, publish or distribute the plaintiff’s information, and Jones suffered no long-term damages as a result of the breach of her privacy rights.  In the case at bar, the explicit video that N.M. posted without Jane’s knowledge of consent remained online for over two years, and was viewed over 60,000 times.  The damage suffered by Jane is profound and still ongoing.  How can the court deny her a remedy in these circumstances?

[96]  I conclude that Jane has a cause of action against N.M. for the public disclosure of private facts without her consent. In Jones v. Tsige, the Court of Appeal recognized the need for civil remedies to protect the privacy of personal information.  I see no reason why this protection should not extend to prevent the unauthorized publication of intimate images, given the privacy rights at stake and the serious harm caused by such publication.

[41]  While the facts of this case bear some of the hallmarks of the tort of "intrusion upon seclusion", they more closely fall within Prosser’s second category: “Public disclosure of embarrassing private facts about the plaintiff.” That category is described by the [Restatement (Second) of Torts (2010) at 652D as follows: “One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.

[42]  The comment section of the Restatement elaborates on this proposition as follows:

Every individual has some phases of his life and his activities and some facts about himself that he does not expose to the public eye, but keeps entirely to himself or at most reveals only to his family or to close friends. Sexual relations, for example, are normally entirely private matters, as are family quarrels, many unpleasant or disgraceful or humiliating illnesses, most intimate personal letters, most details of a man's life in his home, and some of his past history that he would rather forget. When these intimate details of his life are spread before the public gaze in a manner highly offensive to the ordinary reasonable man, there is an actionable invasion of his privacy, unless the matter is one of legitimate public interest.

Although written in somewhat antiquated language, the concepts described are entirely apposite to this case. Among the illustrations offered by the Restatement is the following: “A publishes, without B's consent, a picture of B nursing her child. This is an invasion of B's privacy.

[43]  Prosser listed the features of this tort as follows:

•  the disclosure of the private facts must be a public disclosure, and not a private one;

•  the facts disclosed to the public must be private facts, and not public ones; and

•  the matter made public must be one which would be offensive and objectionable to a reasonable man of ordinary sensibilities.

[44]  Plainly, writing in 1960, Prosser was discussing events that might occur in a pre-Internet world, where the concepts of pornographic websites and cyberbullying could never have been imagined. Nevertheless, the essence of the cause of action he described is the unauthorized public disclosure of private facts relating to the plaintiff that would be considered objectionable by a reasonable person. In the electronic and Internet age in which we all now function, private information, private facts and private activities may be more and more rare, but they are no less worthy of protection. Personal and private communications and the private sharing of intimate details of persons’ lives remain essential activities of human existence and day to day living.

[45]  To permit someone who has been confidentially entrusted with such details – and in particular intimate images - to intentionally reveal them to the world via the Internet, without legal recourse, would be to leave a gap in our system of remedies. I therefore would hold that such a remedy should be available in appropriate cases.

[46]  I would essentially adopt as the elements of the cause of action for public disclosure of private facts the Restatement (Second) of Torts (2010) formulation, with one minor modification: One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of the other’s privacy, if the matter publicized or the act of the publication (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public. [modification shown by underlining]

[47]  In the present case the defendant posted on the Internet a privately-shared and highly personal intimate video recording of the plaintiff. I find that in doing so he made public an aspect of the plaintiff’s private life. I further find that a reasonable person would find such activity, involving unauthorized public disclosure of such a video, to be highly offensive. It is readily apparent that there was no legitimate public concern in him doing so.

[48]  I therefore conclude that this cause of action is made out. 

As shown, the criminal law as well as the tort law now address the concern for unauthorized publication of private sexual images.  With both the potential for criminal punishment as well as civil liability, the law now provides a significant deterrent against this very serious improper conduct.

Summary Comment

As a new and developing civil law cause of action, the tort of public disclosure of personal facts or private image provides a form of privacy law that provides for the potential of significant liability awards against a person who engages in nonconsensual publication or distribution of personal facts or images.

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