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Home > Our Insights > Doe 464533 v. D.: Business Implications of the Civil Privacy Claim for “Public Disclosure of Private Facts”
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Doe 464533 v. D.: Business Implications of the Civil Privacy Claim for “Public Disclosure of Private Facts”

Published:

January 27, 2016

Author(s):

  • David Fraser

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On January 21, 2016, the Ontario Superior Court of Justice dramatically expanded the scope of legal privacy protection – and the liability exposure for breaching it. For the first time, a Canadian court expressly recognized a new privacy-based legal claim: “public disclosure of private facts” or “breach of confidence” – and awarded real monetary compensation for it. The decision demonstrates the law’s ability to keep pace with new kinds of misconduct (especially where it cries out for a legal remedy, like cyberbullying). But it also increases the liability exposure for data breaches by businesses that are the custodians of sensitive personal information, particularly if they have it “in confidence” – which implicitly includes any information held under the Personal Information and Electronic Documents Act (PIPEDA). It’s now much easier for those whose privacy is breached by such businesses to sue – and to get potentially significant compensation.

Jane Doe’s ex-boyfriend (“Don”) posted on the internet an explicit sexual video of her without her knowledge or consent – a case of so-called “revenge porn”. The video was up for three (3) weeks then removed; there wasn’t any way to determine the number of times it was viewed or downloaded during that time. Ms. Doe sued Don and asked the Court for monetary compensation and punitive damages (a monetary award intended to punish the defendant ex-boyfriend) and for an order to stop him from such conduct in the future; Don didn’t have any legal counsel at the hearing. The Court said the case was about someone’s ability to sue for invasion of her privacy, and decided Ms. Doe could sue – and succeed.

Plugging the legal remedies gap. In today’s electronic and Internet age, privacy is easier to invade – but not less worthy of protection. And sharing personal and private communications and privately sharing intimate details are still essential life activities. If someone entrusted with them could intentionally share them via the internet without legal recourse, there would be a gap the law’s remedies – and there should be an available remedy in appropriate cases.

The new remedy: claim of public disclosure of private facts. The Court adopted a slightly modified, but still fitting, description of the new claim formulated in 1960 in the United States – long before the Internet, porn website or cyberbullying: someone who gives publicity to a matter concerning another’s private life is subject to liability to that other person for invasion of her if either the matter publicized – or, the Court added, the act of the publication – would be highly offensive to a reasonable person and is not of legitimate concern to the public. The key features of the claim are:

  1. Public disclosure. The disclosure of the private facts must be a public – not a private – disclosure.
  2. Private facts. The facts publicly disclosed must be private – not public – facts.
  3. Objectively offensive. The matter made public must be one that would be offensive and objectionable to a reasonable person of ordinary sensibilities.

Significant compensation. Since there was no guidance from other decisions because this claim was novel, it was appropriate to be guided by awards in sexual assault and sexual battery cases – and awarded Ms. Doe $100,000: $75,000 monetary damages (general and aggravated) plus punitive damages of $25,000. Read the Ontario Superior Court’s decision in Doe 464533 v. D., 2016 ONSC 541 here (PDF). Don didn’t have legal counsel at the court hearing, so there’s still a question of what arguments his legal counsel, if he had any, would have made against the recognition of the new claim and whether it would have succeeded. And unless Don appeals the decision, the development of this new legal claim won’t continue unless and until another case comes before another court. But the decision still demonstrates that the law is trying hard to keep up with reality and technology – and is, arguably, succeeding.

Incremental development. It incrementally develops the law in line with the Canadian Charter of Rights and Freedom’s fundamental value of privacy protection, building on the foundation the Ontario Court of Appeal laid in 2012 (Jones v. Tsige, 2012 ONCA 32). That case effectively adopted the first of four privacy-based civil claims; this one adopts the second (Canadian law already recognizes the third and fourth):

  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.

Cyberbullies get out your wallet. There are now fewer gaps in the law protecting privacy: it’s easier to sue for breach of privacy under either intrusion upon seclusion or, now, public disclosure of your private facts. This gives targets of privacy-intrusive behaviour – including of cyberbullying – a new legal weapon against the easy, instant publication and profileration of damaging social media and Internet content. The new tool isn’t a criminal, or even quasi-criminal, sanction, like the now ineffective NS Cyber-safety Act. But if the amount of the monetary award in this case – a substantial amount as far as legal cases go – is any indication, it will likely have a similar deterrent effect. To learn more about the fate of the NS Cyber-safety Act, read McInnes Cooper’s: The Bell Tolls for NS Cyber-Safety Act – NS Supreme Court Decides Act Is Unconstitutional here.

Businesses are also exposed. A less obvious – but equally real – effect of this decision and its tightening of the gap in privacy protection is on the liability exposure of businesses. Many businesses are custodians of sensitive personal information, especially if they hold it “in confidence” – and any information held under PIPEDA is implicitly held in confidence. Just as cyberbullies are now exposed liability for publicly disclosing private facts, so too are businesses exposed to liability for data breaches that publicly disclose private information of which they are the custodian. It remains to be seen how such a claim on this scale would play out, but not many businesses would want to be the guinea pig for how such a claim would go – or how much compensation a court would be willing to award for it. But now is a good time for these businesses to audit their date protection and security processes and procedures – and plug any gaps themselves.


Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Privacy Team to discuss this topic or any other legal issue.


McInnes Cooper has prepared this document for information only; it is not intended to be legal advice.  You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

© McInnes Cooper, 2016.  All rights reserved.  McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it.  You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at [email protected] to request our consent.

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    Jan 18, 2016

    On January 14, 2016, the Ontario Superior Court decided that Canadians have a clear privacy interest in their records of their cellular…

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    Publication
  • New Kid on the Block: Crowdfunding Joins Traditional Equity-Based Funding Options for Startups & SMEs

    Oct 19, 2015

    Access to sufficient capital to fund operations, research and development, and other costs is a key challenge for start-ups and for some small…

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    Publication
  • Canada’s Anti-Spam Legislation (CASL): The Top 3 Lessons Businesses Can Learn from Year 1

    Sep 29, 2015

    The anti-spam sections of Canada’s Anti-spam Legislation (CASL) took effect on July 1, 2014 amidst hype, controversy and dire warnings. Were…

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    Publication
  • A Glimpse Into The Future of Privacy Law: Medical Marijuana Privacy Breach Class Action Lawsuit Can Go Ahead in John Doe and Suzie Jones v. Her Majesty the Queen

    Jul 29, 2015

    On July 27, 2015, the Federal Court of Canada decided a lawsuit by medical marijuana program participants against the Federal Government…

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    Publication
  • Bad Faith & Production of an Insurer’s Business Information: 4 Key Implications of the NB Court of Appeal’s Decision in Wade v. Wawanesa Ins. Co.

    Jul 21, 2015

    On July 16, 2015, the New Brunswick Court of Appeal ordered an insurer to produce a significant amount of its financial and business information…

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    Publication
  • Nova Scotia Goes Its Own Way: Future CPP Disability Benefits Deductible Under SEF 44 in Portage Le Prairie Mutual Insurance Company v. Sabean and Hallett

    Jun 8, 2015

    On June 4, 2015, the NS Court of Appeal decided the value of future CPP disability benefits is deductible under the SEF 44 family protection…

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    Publication
  • The New NS Missing Persons Act: 5 Privacy Implications for Businesses, Organizations & Public Bodies

    Jun 2, 2015

    Effective April 22, 2015 the NS Government enacted the NS Missing Persons Act, lowering the threshold for police to get an order to access…

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    Publication
  • Wait a Minute Mr. Postman … 3 Lessons Health Canada’s Privacy Breach Delivers to the Private Sector

    Mar 25, 2015

    On March 3, 2015 Canada’s Privacy Commissioner determined that Health Canada breached privacy laws by mailing letters to over 40,000 Marihuana…

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    Publication
  • No Messing Around – $1.1M First Penalty for Canada’s Anti-Spam Legislation (CASL) Violations by Compu-Finder

    Mar 6, 2015

    On March 5, 2015, the Canadian Radio and Television Commission (the CRTC, the main agency charged with administering and enforcing most of CASL)…

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    Publication
  • Final Form of New NS Limitation of Actions Act: “Sudden Death” Limitation is Out for Personal Injury Claims

    Feb 18, 2015

    The new NS Limitations of Actions Act – the legislation that determines the limitation period (time limit) in which a lawsuit must be started…

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    Publication
  • No More Criminalization of Physician-Assisted Dying: The Ripple Effects of A Watershed Decision in Carter v. Canada (Attorney General)

    Feb 9, 2015

    NOTE: On April 14, 2016, the federal government proposed legislation setting out the conditions that a person wishing to undergo…

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    Publication
  • Privacy in Basic Cell Phones: SCC Continues Trend of Privacy Protection in R. v. Fearon

    Dec 11, 2014

    On December 11, 2014 the Supreme Court of Canada continued its trend to recognize privacy rights – and develop the law to protect them –…

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    Publication
  • Canada’s Anti-Spam Legislation (CASL) Software Installation Sections: 10 FAQs

    Dec 11, 2014

    On January 15, 2015, the software provisions of Canada’s Anti-Spam Legislation (CASL) will take effect.  CASL’s anti-spam sections, touted…

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    Publication
  • Complying with Canada’s Anti-Spam Legislation (CASL): A blueprint for the construction industry

    Dec 1, 2014

    The construction industry - project owners, contractors, subcontractors and trades - might be relaxing, ignoring the hype around Canada’s…

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    Publication
  • NS Proposes New Limitation of Actions Act: The 3 Top Benefits & The 10 Key Changes

    Nov 3, 2014

    Note: On November 20, 2014 the NS Government passed the final form of Bill 64, Limitations of Actions Act into law. The final form of the Act…

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    Publication
  • Complying With Canada’s Anti-Spam Legislation (CASL): Protecting Directors & Officers from Personal Liability

    Oct 14, 2014

    CASL’s anti-spam sections came into force on July 1, 2014. Every organization that CASL affects should now be complying with it – and their…

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    Publication
  • Changes to NB Rules of Court Effective October 1, 2014 Benefit Successful Party

    Sep 9, 2014

    Effective October 1, 2014, the New Brunswick Rules of Court will change – some Rules for the first time since they came into effect in 1982.…

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    Publication
  • Complying With Canada’s Anti-Spam Law (CASL) – Foreign Organizations Doing Business in Canada Need to Pay Attention

    Aug 1, 2014

    Most Canadians have heard about Canada’s Anti-Spam Legislation (CASL): we’ve been bombarded with “CASL Compliant” emails asking us to…

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    Publication
  • SCC Protects Internet Users’ Expectation of Privacy In Online Activities in R. v. Spencer

    Jun 16, 2014

    On June 13, 2014 the Supreme Court of Canada decided that Canadians have a reasonable expectation of privacy in their online activities, and…

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    Publication
  • Counting Down to Canada’s Anti-Spam Legislation (CASL) – The Last Minute Guide to Preparing For CASL

    Jun 12, 2014

    The countdown to CASL is almost over: there are only 13 business days until the anti-spam provisions of CASL – and most of the penalties for…

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    Publication
  • Joining the Crowd – NS & NB Consider Crowdfunding

    Jun 11, 2014

    Note: For an update on Crowdfunding, read: New Kid on the Block – Crowdfunding Joins Traditional Equity-Based Funding Options for Start-ups…

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    Publication
  • Counting Down to Canada’s Anti-Spam Legislation (CASL) –10 Steps to Prepare for CASL

    May 8, 2014

    On July 1, 2014 – less than two months from now - the anti-spam sections of Canada’s Anti-Spam Legislation (CASL) take effect. Individuals…

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    Publication
  • What’s In The Pipe? Municipal Liability for Flood & Sewage Back-Up Claims

    May 2, 2014

    April showers bring … flood and sewage back-up claims. Flooding and sewage back-up can result in significant damage for municipal ratepayers,…

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    Publication
  • Counting Down to Canada’s Anti-Spam Legislation (CASL) – Does CASL Make You A “Spammer”?

    Apr 15, 2014

    The countdown to CASL is on: on July 1, 2014, the anti-spam sections of Canada’s Anti-Spam Legislation (“CASL”) take effect. Individuals…

    Read More
    Publication
  • Cloud Computing: A Privacy FAQ

    Mar 19, 2014

    As organizations turn to cloud computing services, ensuring compliance with legislation and reducing privacy risks is key. In Canada, there is…

    Read More
    Publication
  • Counting Down to Canada’s Anti-Spam Legislation (CASL): 10 Reasons Why You Should Care About The Upcoming CASL Right Now

    Feb 28, 2014

    On July 1, 2014, the anti-spam sections of Canada’s Anti-Spam Legislation (aka “CASL”) will take effect. CASL is: Broad. It applies…

    Read More
    Publication
  • Counting Down to Canada’s Anti-Spam Legislation (CASL) – What You Need to Know Now

    Feb 28, 2014

    On July 1, 2014, the anti-spam sections of Canada’s Anti-Spam Legislation (aka “CASL”) take effect. CASL will apply to just about every…

    Read More
    Publication
  • Privacy in Computer Contents: Supreme Court of Canada Picks Up Where It Left Off in R. v. Vu

    Nov 8, 2013

    On November 7, 2013, the SCC decided police require specific authorization in a search warrant to search the data in a computer because of the…

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    Publication
  • Supreme Court of Canada Confirms Employees May Have a Limited Reasonable Expectation of Privacy In Work Computer in R. v. Cole

    Nov 28, 2012

    On October 19, 2012 the Supreme Court of Canada (SCC) decided that a teacher criminally charged with possession of child pornography and…

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    Publication
  • Legal Alert: SCC Finds Limited Reasonable Expectation of Privacy In Work Computer But Evidence Still Admissible

    Oct 22, 2012

    Mr. Cole was a high school teacher with an employer owned and issued laptop computer.  He also used it for incidental personal purposes, which…

    Read More
    Publication
  • Ontario Court of Appeal Finds Reasonable Expectation of Privacy in Work Computer

    May 6, 2011

    In March 2011, the Ontario Court of Appeal found that an employee had a limited expectation of privacy in the contents of a work computer. The…

    Read More
    Publication
  • Legal Update: Cloud Computing and Privacy FAQ

    Apr 7, 2011

    Note: Click here to read an updated version of this Legal Update in Cloud Computing: A Privacy FAQ as seen in as seen in CCCA Magazine, Spring…

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    Publication

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