Reasonable Doubt: Emerging civil remedies for revenge porn

I’ve grown up with the Internet for most of my life. I’m old enough to remember when the it was only a few websites and there was almost no real content. The possibilities, however, were endless. There was this feeling that we all knew that we were participating in something revolutionary that would change the world and how we would view it.

With time, and with more and more people accessing it, the Internet began to change. This most recent fundamental change, dubbed Web 2.0, was heralded as the “Great Equalizer” that would bring peoples of all walks of life together.

The Internet, as it turns out, is only as good as the people who use it. For most, the Internet is simply a tool for communication and to absorb media. People use it to find the best restaurant in town, to post their favourite photo on Instagram, or to share cat memes. Depending on your view of cats and people who post photos of food, this is generally benign.

The Internet’s dark side

There is, however, a darker side to the Internet. It’s a place where people can betray your trust. They use the Internet as a weapon to bully, shame, and victimize people who have shared intimate moments with those who were not deserving of their trust. Given how vast and integrated the Internet now is in our lives, the damage can rarely be undone.

Both the courts and governments across the country have worked to find a way to mete out justice, in one form or another, against those who have publicly disclosed intimate and private videos and photos without the consent of those depicted. Manitoba, for example, introduced The Intimate Image Protection Act, which was designed to deal with sharing such images without consent. Nova Scotia brought in the Cyber-safety Act, but this was struck down by the Nova Scotia Supreme Court as being unconstitutional.

British Columbia, however, has the Privacy Act, which provides that it is a tort for a person willfully and without a claim of right to violate the privacy of another. The circumstances and expectations of one’s privacy is to be assessed on a case-by-case basis, and the court would need to consider the “nature, incidence, and occasion of the actor conduct and to any domestic or other relationship between the parties”.

First civil case in Ontario

The first reported case in Canada to deal with revenge porn in a civil context was in Ontario, Jane Doe 464533 v. N.D., which was released in 2016. The plaintiff in that case brought a lawsuit after her ex-boyfriend posted an intimate video of her online to a pornographic website and also shared it with her friends, despite having promised to never share it with anyone. Justice Stinson found that the defendant had breached the plaintiff’s confidence by sharing a video which had “the necessary quality of confidence about it”.

Stinson also found that the defendant had committed the tort of intentional infliction of mental distress and invaded the plaintiff’s privacy by publicizing or publishing the private life of another where it would be highly offensive to a reasonable person and not of legitimate concern to the public. The judge awarded the plaintiff $100,000 plus costs, which included $25,000 in punitive damages.

B.C. case involved videotaping

T.K.L. v. T.M.P. was a case where the plaintiff sued her stepfather for secretly observing and video-recording the plaintiff while she was undressed in the bathroom and bedroom. Part of her lawsuit was that her stepfather had violated the B.C. Privacy Act and a fiduciary duty he owed her. Justice Thompson found that the plaintiff’s stepfather’s spying and videotaping violated the Privacy Act and breached his fiduciary duty.

The videotaping occurred on four occasions in 2011 while the plaintiff was between the ages of 20 and 21. He took video of her while she was in the shower and while she was in her bedroom, changing. The defendant admitted he took these videos, in part to humiliate her and get revenge.

Thompson found that the stepfather violated Subsection 1(1) of the Privacy Act when a person willfully and without a claim of right violates the privacy of another. The plaintiff was able to show in this case that her stepfather’s actions caused her psychological harm. She had become quiet, withdrawn, and fearful after the video-recording incidents, and only by the time of trial had she slowly started to become who she was again. The plaintiff had physical symptoms as well—including losing 20 percent of her body weight and scratching her arms with pins—and was diagnosed with an anxiety disorder and depression.

The judge awarded the plaintiff $85,000 in general damages, which included $25,000 in aggravated damages.

Precedents set in both cases

Both of these cases are notable because of their rarity and the amount that was awarded in damages. These cases are not typical. The reality is that most cases are unlikely to ever net such a large award from the court. Each case is also fact-specific, and the court will assess each case on its merits.

There can also be procedural issues that may get in the way. In Jane Doe 464533, a recent decision by the Ontario courts has overturned the summary-judgment decision and is allowing the defendant to mount a defence in that case. As such, it will be important to watch and see how that case develops in the future.

What is important about both of these decisions, however, is the precedent they set. The court has laid the framework for future cases to build on. T.K.L. is particularly important to British Columbians because it shows that the language of the Privacy Act can be used toward video recordings even when they are not shared with the public.

A word of caution: you should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.

Read the rest