‘Got a Secret, Can You Keep It?’ Developments in the Tort of Public Disclosure of Private Facts

  • May 07, 2022
  • Matilda Lici

Civil remedies for invasions of privacy have been gradually developing across Canada for a number of years. Many courts have suggested that new categories of privacy torts should be created as the societal need for them arises. In recent years, in response to the proliferation of “revenge porn disseminated online, courts have considered whether new legal remedies are appropriate to assist victims whose privacy interests are publicly violated. In 2016, the Ontario Superior Court of Justice in Jane Doe 464533 v. N.D.2016 ONSC 541 (CanLII) recognized, for the first time, the tort of public disclosure of private facts. Since then, subsequent courts across the country have provided further guidance on the nuances of the tort and what types of privacy infringements it is intended to redress.

1. A civil tort is necessary to close the gap in available legal remedies for victims

In Jane Doe 464533 v. N.D., the plaintiff’s ex-boyfriend posted an intimate video of her on a pornography website without her knowledge or consent. The video was available online for approximately three weeks before it was removed. The Court acknowledged that, given the ubiquity of the internet and social media, “private facts and private activities may be more and more rare.” Nevertheless, insofar as the private sharing of intimate details of people's lives remains an “essential activit[y] of human existence and day-to-day living,” the Court concluded that such private sharing is worthy of protection at law. The Court thought it important to recognize the tort of public disclosure of private facts because, without it, there would be “a gap in our system of remedies.”

The default judgment in Jane Doe 464533 v. N.D. was later set aside. However, in 2018, the Court in Jane Doe 72511 v. N.M.2018 ONSC 6607 (CanLII), another revenge porn case, likewise emphasized that a cause of action for public disclosure of private facts “represents a constructive, incremental modification of existing law to address a challenge posed by new technology.” 

In E.S. v. Shillington2021 ABQB 739 (CanLII), the Court confirmed the existence of a right of action for public disclosure of private facts in Alberta, adding: “To do so recognizes these particular facts where a wrong exists for which there are no other adequate remedies.” In 2021, the Supreme Court of Nova Scotia similarly confirmed the existence of the tort in Nova Scotia in Racki v. Racki2021 NSSC 46 (CanLII).