Privacy Through The Ages ' Where Do We Go From Here? (Part 5)

• Published date: 23 September 2022
• Subject Matter: Litigation, Mediation & Arbitration, Privacy, Privacy Protection, Class Actions
• Law Firm: Lerners
• Author: Ms Jennifer L. Hunter and Jennifer O'dell

Our last installment of this series discusses where privacy law torts are heading and what we can expect in the near future from the courts and legislature alike.

1. Courts Country Wide Continue to Tackle "Revenge Porn" Cases

In March of this year, a Manitoba court awarded Brittany Roque $60,000 when her private intimate photos were maliciously shared with the Brandon Police Service (BPS), her potential employer¹. Years prior, Roque had been in a relationship with a Brandon police officer. The officer's then romantic partner, Terry Lynn Peters, found Roque's images and shared them with the BPS.

Roque sued the BPS and Peters, who shared the images. The court awarded Roque $45,000 in general damages, finding the BPS and Peters jointly liable. The court specifically found Peters liable for $15,000 in aggravated damages. Importantly, Roque's civil suit was brought under Manitoba's Intimate Image Protection Act, passed in 2016. Not all provinces have this kind of legislation, including Ontario. In 2017, Alberta followed suit, and in 2018, Nova Scotia and Newfoundland passed their own legislation. Saskatchewan amended its Privacy Act in 2018 to create a right of action against people who share intimate images. Notably, this amendment created a 'reverse onus' where the distribution of an intimate image is presumed to be without the person's consent. Although the Criminal Code makes it an offence to share an intimate image without consent, protections for victims in the civil context are important to deter and punish perpetrators.

Will Ontario follow suit with its own legislation, or will it rely on the court's recognition of the tort of public disclosure of embarrassing private facts to regulate the offence of sharing private photos online? Interestingly, Alberta's Protecting Victims of Non-Consensual Distribution of Intimate Images Act², was not relied on in the recent intimate image sharing case of E.S. v Thomas Shillington³, because the offences occurred before the Act was passed in 2017. Instead, the plaintiff asked the court to recognize the tort of public disclosure of private facts, which the court did. Recognizing this tort has the advantage of ensuring that individuals are not hampered by the rule prohibiting the retrospective application of statutes.

Overall, the court's willingness to anonymize court proceedings and award aggravated and/or punitive damages on top of the plaintiffs' general damages claim suggests that these cases will continue to set...