From time to time, I receive calls from prospective clients concerning situations where details about private/personal lives are publicly disclosed. Aside from instances of slander and defamation (where it is important to know that the truth is a complete defence), there may be other options available to people to protect their privacy.
In Jones v. Tsige, 2012 ONCA 32 (CanLII), the Ontario Court of Appeal recognized the new tort of intrusion upon seclusion. The Court of Appeal identified four privacy-related torts that appear in American jurisprudence:
1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs.
2. Public disclosure of embarrassing private facts about the plaintiff.
3. Publicity which places the plaintiff in a false light in the public eye.
4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness.
Earlier court decisions have already recognized the tort of appropriation of name or likeness (also seen in the case law as appropriation of personality) and the outcome in Jones v. Tsige recognized the tort of intrusion upon seclusion.
In Action Auto Leasing & Gallery Inc. v. Gray, [2013] O.J. No. 898, the defendant in a Small Claims Court action argued that the plaintiff had caused him embarrassment when his mother heard a voice message left by the plaintiff at the defendant’s home. The message essentially said that the defendant’s car lease was in default and that he owes $8,800. The court granted a nominal $100 set off against the plaintiff’s claim and said:
In Jones v. Tsige (2012), 108 O.R. (3d) 241 (C.A.), the court accepted the existence of a civil cause of action for invasion of privacy. That case involved, as the plaintiff's representative submitted, "intrusion upon seclusion" - and more particularly the improper accessing of private banking information on multiple occasions. However the court approved (at para. 18) a list of four different ways that invasion of privacy can occur. The second of those was public disclosure of embarrassing private facts. If I am wrong and the court only approved intrusion upon seclusion and did not address the other three forms of invasion of privacy, then I would recognize the public disclosure form based on the same reasons which supported the court's acceptance of intrusion upon seclusion as a cause of action. (para 14)
This Small Claim Court decision appears to be the only reported case that recognizes the tort of public disclosure of embarrassing private facts in Ontario. However, there are other cases where courts have been asked to rule on a motion to strike pleadings on the grounds that no such tort of “public disclosure of embarrassing private facts” exists. For example, in Nitsopoulos v. Wong, [2008] O.J. No. 3498, the Court dismissed the defendant’s motion to strike the Statement of Claim, because the Court felt that it needed the benefit of having a full evidentiary record in order to develop the common law consistent with Charter values. In other words, the tort of public disclosure of embarrassing private facts may exist so the Court refused to strike out the related pleadings. In relation to the novel tort of public disclosure of embarrassing private facts, the Court in Nitsopoulos said:
In decisions outside of Ontario, public disclosure of embarrassing private facts about a person have resulted in damage awards, even where the facts disclosed are true and not libellous or defamatory. See for example Max Mosley v. News Group Newspapers Limited [2008] EWHC 1777 (Q.B.) (U.K.).
Since this tort remains unsettled under Ontario law, it is difficult to know what a judge would do when confronted with a case alleging public disclosure of embarrassing private facts. However, in Jones v. Tsige, the Court of Appeal adopted the American definition of the tort of intrusion upon seclusion. Thus, it is likely that another judge in Ontario would also adopt the American definition of the tort of public disclosure of embarrassing private facts, which is defined in the Restatement of Law, Torts (1977) as:
§652D Publicity Given to Private Life
One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.
If adopted in Ontario, this definition sets a relatively high standard for the plaintiff to succeed (i.e., the matter publicized must be highly offensive to a reasonable person). Furthermore, it contains a complete defence if the matter is of legitimate concern to the public (which would protect journalists from liability in many cases).
James Anderson