Alberta Recognizes New Tort, Public Disclosure of Private Facts

We have previously written about the scourge of revenge porn and the mental impact it can have on victims who have had their most intimate images and videos shared online without their consent. Part of the issue with revenge porn that makes it so insidious is the fact that it can be extremely difficult to have images and videos removed from public view once they’re been made available. While this is still, unfortunately, the case, a court in Alberta recently recognized a new civil tort for public disclosure of private facts, which may make it easier to hold perpetrators financially accountable for their actions.

Revenge Porn Victim Asks Alberta Court to Recognize Tort

The court was considering a case in which a woman, known only as ES, brought a claim against her former partner of more than 10 years for a number of issues including:

• assault
• sexual assault
• battery
• intentional infliction of emotional distress
• public disclosure of private facts

She further requested an injunction, ordering her former partner to remove any and all images of her from the internet and refrain from re-publishing the images in the future.

The couple had been together for eleven years, and they shared two children together. The defendant, TS, is an officer in the Canadian Armed Forces. At points in their relationship, ES had ‘gifted’ TS with intimate photos of herself while TS was deployed away from home, on the understanding that the images would remain private between them. At some point near the end of their relationship, TS admitted he had posted the images online as early as ten years prior. Accessing TS’s profile online, ES was able to locate images posted between 2006 and 2018, which was two years after the relationship had ended. At one point, a neighbour recognized ES from photos he had seen online and spoken to her in a sexually suggestive manner.

As a result of the abuse and having her intimate images posted online, ES suffered from nervous shock, depression, anxiety, humiliation, and sleep disturbances. Her relationship with TS had also involved frequent physical and sexual assault, which compounded her suffering greatly. The couple had lived at a military base in Nova Scotia, however, with the help of the base chaplain and other officials at the base, ES was able to flee with the couple’s children to Alberta during a weekend when TS was away. Since leaving TS, ES has been in weekly therapy, and on a variety of medications to address her ongoing mental health issues. As part of her claim against TS, ES asked the Alberta court to recognize the tort of ‘public disclosure of private fact’.

Adopting the New Tort of Public Disclosure of Private Fact

The court first had to consider whether it would be appropriate to recognize a new tort. In examining the situation, the court found it was merited given the fact that there were no adequate remedies in the province to address the situation at hand.

Once it was determined that the tort should be recognized, the court then had to set out the elements required to prove the tort in court. Taking its cue from existing cases in both the UK and in Ontario, the court enumerated the following elements:

1. The defendant publicized an aspect of the plaintiff’s private life;
2. The plaintiff did not consent to the publication;
3. A reasonable person in the same position as the plaintiff would be highly offended by the publication; and
4. The publication was not of legitimate concern to the public.

Court Awards Injunctive and Financial Relief

The court found that ES’s request for an injunction was warranted. The court ordered TS to make his best efforts to remove all images from where they appear online, as well as return any images in his possession to ES. Further, the court awarded ES general damages totalling $80,000 for her suffering. In addition, the court considered ES’s request for punitive and aggravated damages.

Finding that TS’s conduct was worthy of “significant condemnation”, the court awarded punitive damages in the amount of $50,000. Further, the court noted that the conduct was motivated by malice, and the publication of the intimate images was another form of domestic abuse which significantly increased ES’s humiliation and anxiety. As a result, the court awarded aggravated damages in the amount of $25,000.

Given the difficulty in removing intimate images from the internet once they’ve been posted, perhaps this new remedy will serve as a deterrent to those who would otherwise consider posting intimate images and videos online without consent. At the very least, it will help those who have been affected by revenge porn obtain the necessary compensation to enable them to seek the treatment they need to manage any emotional and mental health fallout they might experience.

Contact Mincher Koeman for Skilled and Efficient Resolution to Matters Involving Revenge Porn in Calgary

If you are or have been the victim of revenge porn, you should contact the police immediately to report the offence. You should then seek legal advice to determine your options for civil remedies against the offender, and Mincher Koeman can help. 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. Please contact our office to make an urgent appointment to discuss your matter with one of our lawyers by calling us at 403-910-3000 or by contacting us online.