Commercial Litigation and Dispute Resolution Blog

In ES v Shillington^[1], a decision issued last month, the Alberta Court of Queen’s Bench recognized the tort of Public Disclosure of Private Facts, a new cause of action that protects private information from public disclosure.^[2] Formal recognition of this tort in Alberta marks an important development in the law, giving additional legal protection to individuals’ information privacy rights at a time when the proliferation of technology makes it harder and harder to protect private information.

In order to establish liability for the tort of Public Disclosure of Private Facts, the plaintiff must prove that:

1. the defendant publicized an aspect of the plaintiff’s private life;
2. the plaintiff did not consent to the publication;
3. the matter publicized or its publication would be highly offensive to a reasonable person in the position of the plaintiff; and
4. the publication as not of legitimate concern to the public.^[3]

Facts

The facts of this case are disturbing. For that reason, this post includes only a high-level summary.

The plaintiff and defendant had been in a romantic relationship for more than ten years. During the course of their relationship, the plaintiff shared sexually explicit photographs and videos of themself with the defendant. The defendant posted the content online without the plaintiff’s consent and, toward the end of their relationship, admitted to doing so. The plaintiff was able to track some of the images through the defendant’s social media accounts and was disturbed to find that many of the images, including some in which the plaintiff was identifiable, were available on pornography websites. The plaintiff suffered significant mental distress and embarrassment as a result of the postings. The defendant was also physically and sexually abusive toward the plaintiff.

The plaintiff sued the defendant for assault, battery, sexual assault, intentional infliction of mental suffering and breach of confidence, and asked the court to recognize the new tort of public disclosure of private information. The plaintiff sought damages and injunctive relief.

The defendant did not defend and the court entered default judgment for the plaintiff’s claims of assault, battery, sexual assault and intentional infliction of mental suffering. The Court convened a Special Chambers application to hear argument on the new cause of action.

Recognition of the new tort of Public Disclosure of Private Facts

In considering whether to recognize the new tort, Justice Inglis applied the following three rules articulated by the Supreme Court of Canada in Nevsun Resources Ltd v Araya^[4]:

1. The proposed tort must be necessary, in the sense that it addresses a wrong for which there are no adequate alternative remedies;
2. The proposed tort must reflect and address a wrong visited by one person upon another; and
3. The proposed tort must be an appropriate subject for judicial consideration.

The bulk of the analysis focused on whether or not recognizing the new tort was necessary to address the defendant’s conduct in publishing images of the plaintiff without the plaintiff’s consent.

Justice Inglis found there was no statutory civil remedy available to the plaintiff, because the defendant posted the images of the plaintiff online before Alberta’s Protecting Victims of Non‑Consensual Distribution of Intimate Images Act (the Act) came into force, and the rule against retrospective application of statutes prevented the plaintiff from relying on the Act. Justice Inglis also noted two potential gaps in the statutory framework that could further limit the availability of a statutory civil remedy. First, the Act only protects against public distribution of “intimate images,” which is limited to images in which the victim is nude, exposing their genital or anal regions or breasts, or is engaged in sexual activity. Second, the Act does not protect against privately sharing “intimate images.”^[5]

Justice Inglis was also satisfied that existing torts of breach of confidence and intentional infliction of mental distress did not adequately address the particular conduct at issue, as the legal tests for both impose barriers to a remedy. The tort of breach of confidence requires the plaintiff to prove that the information (in this case, the images) was both confidential and communicated in confidence. These requirements bar many scenarios and “protect[] a distributor of private images provided he acquires those images without any communication or implied confidentiality owed to the person whose privacy is vested in the information.”^[6] The tort of intentional infliction of mental harm requires the plaintiff to prove that the defendant’s conduct was “calculated to produce harm” and resulted in a “provable illness.” These requirements may bar a plaintiff from obtaining relief in the case of non-consensual publication of intimate images because they require the plaintiff to establish the subjective intent of the defendant, and to prove something beyond anxiety, stress and humiliation.^[7] On this basis, the Court found that creation of a new tort was warranted.

The Elements of the Tort

Justice Inglis articulated a four-part test to establish liability for the tort of Public Disclosure of Private Facts:

1. the defendant publicized an aspect of the plaintiff’s private life;
2. the plaintiff did not consent to the publication;
3. the matter publicized or its publication would be highly offensive to a reasonable person in the position of the plaintiff; and
4. the publication was not of legitimate concern to the public.^[8]

With respect to the first element of this test, Justice Inglis identified four established categories of private information that qualify as aspects of a person’s “private life” protected from publication by this tort: information about financial matters, information about sexual matters, relationship records and health records. Importantly, this is not a closed list and new categories of private information may be added in the future. Although Justice Inglis did not articulate a definitive test for recognizing new categories of private information protected by this tort, the starting point of the analysis is to ask: “What would a reasonable person feel if they were placed in the same position as the claimant faced with the same publicity?”^[9]

With respect to the third element of this test (publication is highly offensive), Justice Inglis emphasized two important points. First, the plaintiff does not have to prove that the shared information is itself offensive. It is sufficient that the information is private.^[10] Second, the “reasonable person” to be considered when assessing whether or not the publication of the private information is offensive is the person affected by the publication (i.e., the plaintiff), not the viewer of the publication.^[11]

Ultimately, Justice Inglis found the defendant liable for this tort, awarded general, aggravated and punitive damages, and ordered a permanent injunction requiring the defendant to return all images of the plaintiff, remove any images that the defendant posted, and prohibiting the defendant from sharing any private images of the plaintiff in the future.

Takeaway

Although this case involved the non-consensual distribution of intimate images, the tort of Public Disclosure of Private Information may also protect a broader range of private information, including financial and medical records. This decision is therefore an important reminder to businesses that collect individuals’ private information about the need to protect that information from disclosure.

_{[1] ES v Shillington, 2021 ABQB 739 [Shillington].}

_{[2] Although new in Alberta, this cause of action had been recognized elsewhere in Canada as early as 2018. See e.g., Jane Doe 72511 v Morgan, 2018 ONSC 6607.}

_{[3] Shillington at para 68.}

_{[4] 2020 SCC 5}

_{[5] Shillington at paras 41-42.}

_{[6] Shellington at paras 43-46.}

_{[7] Shellington at paras 47-49.}

_{[8] Shillington at para 68.}

_{[9] Shillington at para 69}

_{[10] Shillington at paras 64-65.}

_{[11] Shillington at para 67}