Alberta’s new revenge porn privacy tort
Why reputational damage cannot be capped.
The Alberta Court of Queen’s Bench recognized a new tort of public disclosure of private facts last year when it released two decisions (ES v Shillington and LDS v SCA) that involved what is colloquially known as “revenge porn,” the digital distribution of sexually explicit images or videos of individuals without their consent, with the intention of causing them harm and embarrassment.
To succeed in the action for the tort, the plaintiff must establish that the defendant publicized an aspect of their private life to which they did not consent and that it would be highly offensive to a reasonable person in their position. Also, the publication must not have been of legitimate concern to the public.
Canadian courts have referenced sexual battery cases as a benchmark for general damages in revenge porn cases, but in my view these types of claims should be viewed as a hybrid between sexual battery and defamation. In situations involving reputational damage, it is extremely difficult for a plaintiff to provide concrete proof of a loss of earning capacity. Nevertheless, there is a significant possibility that a plaintiff’s earning capacity will be negatively impacted by the dissemination of revenge porn. As Justice R. Paul Belzil explained in LDS, the online disclosure was particularly insidious as its full impact may never be known and one can easily envision future employment being adversely affected.
Also, to be considered in awarding damages is the potential impact on a plaintiff’s future employment prospects. Alternatively, loss of earning capacity should be awarded as a separate head of damage.
In the internet age, it would be rare for an employer not to google prospective employees. The potential for far-reaching and devastating reputational and career consequences for a victim of revenge porn cannot be overstated. In LDS, the online postings identified the plaintiff’s full name, and the city and province where she lived. It was the plaintiff’s employer who brought them to her attention.
There have only been a handful of Canadian cases dealing with the tort of public disclosure of private facts. In a 2016 ruling, the Ontario Superior Court of Justice awarded the plaintiff $50,000 in general damages, $25,000 in aggravated damages, and $25,000 in punitive damages in a default judgment. It set the tone for future cases. Notably, this action had been commenced under Ontario’s simplified procedure rules, when the total available damages were limited to $100,000. The plaintiff received the total maximum allowed. Damages in cases that followed range from $45,000 - $100,000 in general damages.
In ES, the court determined that a trilogy capping non-pecuniary damages applies to the tort of public disclosure of private facts. In doing so, it adopted the reasoning and conclusions set out in this sexual battery decision.
In contrast, the Supreme Court of Canada held in 1995 in Hill v Church of Scientology that non-pecuniary damages are not capped for the tort of defamation for several reasons. The first is that injury in a defamation case differs from that suffered by a plaintiff in a personal injury case. In the latter, they can recover under several heads of pecuniary damages, whereas in defamation cases, pecuniary damages are rarely claimed because they are exceedingly difficult to prove. The whole basis for recovery for loss of reputation lies in the general damages award.
Second, the cap on non-pecuniary damages in personal injury cases was partly motivated out of a concern that failing to cap them would lead to rising insurance rates.
Also, defamation is an intentional tort and there is no pressing social need to establish predictability in defamation cases.
These reasons are equally applicable to the tort of public disclosure of private facts. Any distinction between the lower non-pecuniary damages awarded for this new tort versus the higher amounts awarded in defamation cases is arbitrary. Both torts are prone to causing devastating consequences to the injured party, like shame, fear, anxiety, social isolation, psychological damage, emotional upset, and damage to reputation, relationships, and career.
The only ascertainable distinction between the two is that defamation involves false allegations, whereas intimate images are real and taken with or without consent. This distinction should not justify a cap, as it is accompanied by an undercurrent of blaming a revenge porn victim and survivor for creating the material or allowing it to be created.
The non-consensual posting of intimate images to the internet is a tort that strikes at the very core of an individual – their sexual and personal autonomy – and is arguably an even more grotesque social ill than harm to professional reputation. There is little reason that damage to one’s professional reputation should be compensated at a higher value than public damage to one’s sexual integrity. They both involve damage to reputation, and both can impact an individual’s career prospects.
The Supreme Court accepted in Hill that “[a] defamatory statement can seep into the crevasses of the subconscious and lurk there ever ready to spring forth and spread its cancerous evil. The unfortunate impression left by a libel may last a lifetime.” So too, does the non-consensual sharing of intimate images on the internet last a lifetime, and the cap on non-pecuniary damages should not apply in these circumstances.
