A new tort for invasion of privacy, namely publicly placing a person in false light, was recognized in a recent family law decision of the Ontario Superior Court of Justice, Yenovkian v. Gulian, 2019 ONSC 7279.
This decision involves fairly extreme facts. In this case, the father engaged in cyberbullying of the mother and videotaped the children during court ordered skype access, contrary to court orders prohibiting this behaviour. The children did not know that they were being recorded. The father’s cyberbullying included creating websites, YouTube videos, online petitions and emails disparaging the mother and her family. The father also made several unsubstantiated accusations against the mother and her parents to various authorities. One of his online petitions was entitled “Demand an End to Corruption in Family Law – Investigate the Gulian Family for Kidnapping, Fraud, and Child Abuse”. The father refused to remove the videos and images contrary to a previous court order and, in fact, made posts in the three weeks prior to trial, continued to record and post access visits, and, on the last day of trial, sent an email threatening to post more videos. What is interesting to note is that the mother sought the removal of the online material but YouTube only blocked the channel to Canadians and Canadians can still view the individual videos.
In addition, the father in this case was found to have sought to undermine the administration of justice through an online campaign to “unseat” a judge for rulings made, internet attacks on trial witnesses and the mother’s lawyer, and by flouting court orders and family law disclosure obligations.
The court found that this was an exceptional case but noted that “it will serve to warn other litigants, both represented and self-represented, that cyberbullying another party online, in family law proceedings where the interests of children are in issue, will not be tolerated” (at para. 200).
In her decision, Kristjanson J. defined cyberbullying in family law as “the use of electronic technology, including social media, text messaging, websites and email, in a manner that is intended to cause, or should reasonably be known to cause, fear, intimidation, humiliation, distress or other forms of harm to another person’s body, feelings, self-esteem, reputation or property” (at para. 60). She noted that children are particularly vulnerable to the online postings of a parent “which expose the intimacy of a child’s life which only a parent should have access to” (at para. 63) and found that “[p]ublic posting of recorded in-person and Skype access visits with children, photographs of parental moments, and written and video commentary about the children in a cyberbullying campaign directed to undermining the spouse in family law litigation, viewed objectively, is an offensive intrusion on the privacy of the child."