Edmonton Court: Revenge Porn Conduct “Outrageous”

An Edmonton court has awarded a significant damages award to a plaintiff in a revenge porn case after finding that the defendant’s actions were “truly outrageous”. Further, the court defended its use of the controversial Anton Piller order to analyze the contents of the defendant’s mobile phone for evidence he had posted intimate sexual images of the plaintiff to a social media site.

Revenge porn cases can be particularly difficult to navigate for plaintiffs, as they often involve multiple jurisdictions and various parties, including large software companies. Having images or videos removed from the internet is no easy task, and courts are beginning to respond to this difficulty by granting plaintiffs more access to evidence and holding defendants accountable by applying more severe penalties.

A History of Psychological and Sexual Abuse

The parties in the case at hand, LDS v. SCA, were never married but had been in a relationship for approximately three and a half years, and they shared one child. The plaintiff said the relationship had been an abusive one from the start, comparing it to a relationship of a master and slave.

The defendant allegedly demanded a variety of things from the plaintiff, including requiring that she remain nude at all times while at home, and providing the defendant with sexual favours on demand. The plaintiff left the relationship in 2014, and two years later, she obtained a restraining order against the defendant.

Throughout the relationship, the plaintiff consented to pose for several intimate and sexually explicit photographs at the defendant’s request. These included professional ‘boudoir’ photos, as well as more explicit photographs involving nudity and/or sexual activity. While the plaintiff consented to the photos, she at no time consented to the distribution of the photos to anyone beyond the defendant.

Defendant Posts Photos Online, Hacks into Plaintiff’s Email Account

In 2015, the defendant changed the plaintiff’s Facebook password and accessed her account to post one of the boudoir photos to her account without her knowledge. In addition, he accessed the plaintiff’s email account without her consent and used it to send more photographs to the plaintiff’s boyfriend, along with a suggestive email.

For those actions, the defendant was criminally charged and pled guilty to mischief.

In 2016, the plaintiff applied for a job and in the course of the application process, she was made aware that her name was linked to a pornographic website, and that photos of her had been published and shared to various sites online. The plaintiff then brought a civil. Claim against the defendant for Breach of Confidence, Invasion of Privacy, and Intentional Infliction of Emotional Distress.

As part of this claim, the plaintiff requested and was granted an Anton Piller order to secure digital evidence she believed the defendant would otherwise dispose of before the parties could complete the discovery process.

What is an Anton Piller Order?

An Anton Piller order is a form of search warrant used in civil matters, which allows a plaintiff to enter a defendant’s premises or gain access to their property, to remove items such as documents, photographs, or videos. Due to the extreme nature of the order, which is often granted on an ex parte basis, meaning that the order is often granted without notice to or outside the presence of one of the parties, courts have severe restrictions in place as to when an Anton Piller order may be used.

The following four conditions must be met before an Anton Piller order will be granted:

1. The plaintiff must demonstrate they have a strong case on the merits.
   
2. The potential or existing damage to the Plaintiff must be caused by the defendant’s alleged misconduct, must be very serious.
   
3. The Plaintiff must be able to provide convincing evidence that the defendant has incriminating documents or other items in their possession.
   
4. The plaintiff must demonstrate that there is a real possibility that the defendant might destroy this material before the discovery process is complete.
   

In many cases, courts have deemed the order as too invasive, or as being used for little more than a fishing expedition to find undiscovered evidence.

Court Uphold Anton Piller Order, Awards Summary Judgment to Plaintiff

As part of the case at hand, an Anton Piller order had been used to gain access to the defendant’s mobile phone. An Independent Supervising Solicitor was appointed to oversee the analysis of the defendant’s phone, which provided an overwhelming amount of evidence tracking the defendant’s public posting of intimate images online.

The court found that the defendant had engaged in outrageous conduct, motivated by malice and a desire to cause the plaintiff humiliation, embarrassment, and to interfere with her new relationship. As a result, the court awarded summary judgement to the plaintiff as follows:

• $80,000 in general damages
  
• $25,000 in aggravated damages
  
• $25,000 in punitive damages
  

The court further dismissed the defendant’s request to set aside the Anton Piller order.

Contact Mincher Koeman in Calgary for Revenge Porn Claims

If you are or have been the victim of revenge porn, you should contact the police immediately to report the offence and then seek legal advice to determine your options for civil remedies against the offender. If you are considering a prenuptial or cohabitation agreement, you can ensure greater protection for yourself in the event of a breakdown of your relationship by drafting an agreement that includes provisions to protect and compensate you should your partner ever post videos or photos of you online. The family lawyers at Mincher Koeman in Calgary are exceptionally experienced in managing the technical aspects of a revenge porn matter, including the identification of IP address, and working with police and IT professionals to minimize the proliferation of images and videos online. Contact our office today by calling us at 403-910-3000 or reach out online.