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Revenge porn and damages

Should the victims of revenge porn be entitled to compensation? Until last month, there was no case setting a precedent for compensation for the non-consensual publication of intimate images in Canada.

Please note: the application of this case to provinces outside Ontario is subject to statutory limitations.

Last month in Ontario, Mr. Justice Stinson set out the grounds for damages in a seminal case for breach of confidence and privacy in the publishing of intimate images. In the case before him (Jane Doe 464533 v. Doe), the woman had (under pressure) agreed to send her ex-boyfriend a sexually explicit video. He had promised not to show it to anyone. That same day, he posted it online to a pornography site and titled the video “college girl pleasures herself for ex boyfriends delight”. The ex-boyfriend admitted to posting the video and did not defend the allegations.

The video was online for three weeks, and received an unknown number of views during that time. She had initially gone to the police, but since she was 18 it was not covered by child-pornography criminal laws.  At that time there were no laws making it a crime to publish intimate images without consent, as this was before Bill C-13 (which made distribution of intimate images without consent a criminal offence).

Mr. Justice Stinson remarked that  “there are few things in life that are more private than a sex video”. He concluded that the ex-boyfriend’s conduct was reprehensible and that the victim was entitled to monetary compensation for the suffering he inflicted upon her. In ordering the ex-boyfriend to pay his former girlfriend $100,000.00 in damages, along with interest and costs of the hearing (another $41,708.00); he made the following findings that the boyfriend’s conduct constituted breach of confidence, intentional infliction of mental distress, and invasion of privacy:

Breach of Confidence

[20] There can be little doubt that the decision by the plaintiff to provide the defendant with an intimate video of herself engages issues of confidentiality and privacy. They had a close personal and romantic relationship of some duration. It was on the basis of that relationship that she agreed to provide him with private images of her. The plaintiff’s decision to send the video was premised upon the defendant’s assurance that he alone would view it. His decision to share it publically was a clear breach of the terms upon which it was communicated to him.

[25] I therefore conclude that the plaintiff has made out a cause of action for breach of confidence.

Intentional Infliction of Mental Distress

[31] In my view, it is entirely foreseeable that posting an intimate video of a young woman – who had provided it in the expectation that it would remain confidential – on a public website, and sharing the video with peers, would cause the person whose trust had been betrayed in this fashion extreme emotional upset and understandable psychological distress. I find this element of the tort has been made out.

Invasion of Privacy

[46] I would essentially adopt as the elements of the cause of action for public disclosure of private facts the restatement Second) of Torts (2010 formulation, with one minor modification: One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of privacy, if the matter publicized or the act of the publication (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.

[47] In the present case the defendant posted on the internet a privately-shared and highly personal intimate video recording of the plaintiff. I find that in doing so he made public an aspect of the plaintiff’s private life. I further find that a reasonable person would find such activity, involving unauthorized public disclosure of such a video, to be highly offensive. It is readily apparent that there was no legitimate public concern in him doing so.

[48] I therefore conclude that this cause of action is made out.  

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