Privacy of Intimate Images in a Digital Age

by | Jan 6, 2020 | Articles & Research, Media Law / Defamation, Sean M Sinclair

Privacy of Intimate Images and Videos in a Digital Age

By Sean Sinclair of Robertson Stromberg LLP

 

The online distribution of intimate images and videos (often referred to as “revenge porn”) is a growing problem in Canada.  According to the RCMP, as outlined in a story by CBC News[1], police forces are on track to handle more than 5,000 complaints of the unauthorized distribution intimate images or videos over a five-year period.  The problem is intensifying in recent years, with police handling more than 1,500 cases per year for each of the past three years.

There are both criminal and civil law issues that arise from these actions.  Some of these issues are addressed below.

Criminal Offence

Section 162.1 of the Criminal Code criminalizes the publication or distribution of intimate images (including videos) of an individual without consent.  A working group looking at whether to pass this law found that the existing offences of voyeurism, obscene publication, criminal harassment, extortion and defamatory libel did not adequately address the issue of non-consensual distribution of intimate images and that changes to the law were needed.[2]  Section 162.1 of the Criminal Code was introduced in 2014, motivated in part by the cases of Rehtaeh Parsons and Amanda Todd who had committed suicide after individuals had distributed intimate images of them online.

An individual in Saskatchewan has since been convicted under Section 162.1[3] and received an 18-month prison sentence.  There are other cases decided across Canada and several ongoing matters which deal with this same issue.

Civil Claims

In addition to criminal law prosecutions, there are a few cases where victims of this conduct have brought court actions against perpetrators.

The nature of the civil lawsuits varies, to some extent, province-to-province.

In Saskatchewan, the government passed amendments to The Privacy Act in 2018 to address the distribution of intimate images.  It is now a tort in Saskatchewan for a person to distribute an intimate image of another person without that person’s consent[4].  The Act presumes that consent was not given, and the poster of the material bears the onus to establish that he or she had reasonable grounds to believe that consent was given, to avoid liability.

There are no reported Saskatchewan decisions on these new sections of The Privacy Act.  Thus, it is difficult to know what monetary compensation might be given for this type of conduct.

In several other provinces, there are no statutes that create civil liability for the online distribution of intimate images.  However, courts have expanded tort law to allow for civil liability for this type of a claim.

The leading case is Jane Doe 464533 v N.D.[5] (an Ontario case where they do not have a statute that deals with this issue).  The basic facts are that the defendant had posted an intimate video of the plaintiff on a pornographic website without consent.  The defendant allegedly also showed the video to some of his friends or acquaintances.  The plaintiff’s friends became aware of the video as well.  It was removed by the defendant after approximately 3 weeks.  There is no way to know how many times it was viewed or downloaded.  The plaintiff was devastated.  She deferred examinations, skipped school and stayed in bed.  She had trouble sleeping and started seeing a counsellor to deal with the emotional fallout.  She experienced serious depression.

The defendant in Jane Doe did not initially file a statement of defence.  He was, therefore, deemed to have admitted to the acts in the claim, including the fact that he posted the video without consent.  The judge found that the acts of the defendant led to liability on three different bases: breach of privacy, intentional infliction of mental distress and breach of confidence.

On the breach of privacy claim, the judge adopted a new tort, which stems from American case law, of “public disclosure of private facts”.  In order to establish that there has been public disclosure of private facts, the judge in Jane Doe indicated that a plaintiff would need to show that there had been publication of a matter that is highly offensive to a reasonable person and is not of legitimate concern to the public.

The Court in Jane Doe awarded general damages of $50,000, aggravated damages of $25,000 and punitive damages of $25,000.

It should be noted that the defendant later successfully brought a motion to lift the default judgment to allow him to defend the claim.[6]

Conclusion

These issues of online dissemination and distribution of intimate images and videos without consent are increasing.  Hopefully though, the relatively new criminal sanctions and developing tort law will have some positive effect in deterring individuals from sharing such materials without consent.

 

[1] https://www.cbc.ca/news/canada/saskatchewan/revengeporn-and-sext-crimes-canada-sees-more-than-5-000-police-cases-as-law-marks-5-years-1.5405118

[2] https://www.justice.gc.ca/eng/rp-pr/other-autre/cndii-cdncii/p6.html

[3] https://www.cbc.ca/news/canada/saskatchewan/north-battleford-revenge-porn-1.5343285

[4] Section 7.3(1) of The Privacy Act

[5] 2016 ONSC 541

[6] 2016 ONSC 4920

Alexandre and Epp Present to Construction Association

by | Nov 28, 2019 | Construction, Jared D Epp, Misty S Alexandre, News

The Saskatchewan Construction Association (Saskatoon Chapter) regularly offers a range of courses covering topical industry issues, trends in technology, core industry competencies and business development skills.

On November 26, 2019, Misty Alexandre and Jared Epp presented “Preparing for Prompt Payment” as the industry readies itself for upcoming changes to legislation.

Good Faith in Contract Law

by | Nov 25, 2019 | Articles & Research, Construction, Jared D Epp

Good Faith in Contract Law

By Jared D. Epp, Robertson Stromberg LLP

Although no one on a construction project would argue that good faith is not important, what it means to act in good faith can mean different things to different people. The concept of good faith can often be relevant in the context of termination notices. It is not uncommon, where a party’s contract is terminated, for that party to allege, whether formally or informally, that some aspect of the termination was not done “in good faith”. The issue of good faith, in the context of a termination notice, was recently the subject of a decision by the Ontario Court of Appeal in CM Callow Inc. v. Zollinger.

In this decision, a condominium corporation, through its property manager, had two different maintenance contracts with Callow in relation to a number of condominiums. One contract was for summer maintenance work, while the other contract was for winter maintenance services. The summer maintenance contract was in effect between May 2012 and October 2013, while the winter maintenance contract was in effect from November 2012 until April 2014. Significantly, the winter maintenance contract could be terminated, prematurely, on 10 days’ notice without cause.

Although Callow’s work during the summer seemed to be largely satisfactory, the property manager received a number of significant complaints with respect to Callow’s snow removal services. As a result, in early 2013, the condominium management group (“CMG”) decided that it would terminate Callow’s winter maintenance contract.

However, the CMG specifically chose not to inform Callow of its decision to terminate the winter contract in order to ensure that Callow would complete its summer maintenance work. Not only did Callow complete this work, it also performed a number of additional summer maintenance services in “good faith” and free of charge. Callow also took steps during the summer to lease equipment for the upcoming winter season. Throughout this entire time, CMG did not give Callow any indication that it had decided to terminate Callow’s contract, however, as soon as the summer work was finished, CMG served notice of its intention to terminate Callow’s winter maintenance contract.

After being terminated, Callow decided to sue CMG alleging, among other things, that CMG failed to treat them in “good faith” by failing to let Callow know once a decision had been made to terminate Callow’s contract. At trial, Callow succeeded with this argument and was awarded its lost profit, from the income it would have generated from the winter work, less expenses. Callow was also compensated for the funds that it expended to lease winter equipment which it no longer needed.

However, this decision was over-turned by the Court of Appeal. Although the Appeal Court agreed that CMG had acted “dishonourably”, their deception of Callow did not amount to a breach of CMG’s duty to perform its contractual obligations in good faith. In coming to this conclusion, the Court of Appeal stressed the fact that no one, including CMG, has a duty to disclose information “relevant to termination” nor did the lack of forthright communication by CMG to Callow mean that CMG had forfeited its right to terminate the winter maintenance contract in accordance with that contract’s terms. Callow has since sought leave to appeal this case to the Supreme Court of Canada.

At its core, this decision serves to highlight the uncertain nature of good faith in contract law. Although the Court of Appeal did not believe that CMG had done anything “legally wrong”, the initial judge who heard the case came to the opposite conclusion. It also seems to highlight the difference between a deception by omission and a deception by action, two decidedly unclear legal categories. This is something that the Supreme Court of Canada may very well clarify once they make a decision. However, in the interim, it is a good reminder of the potential perils that can accompany a situation where a decision to terminate is made, but the actual implementation of that decision is deliberately delayed to the prejudice of the party performing the work

Alexandre and Epp Present to Healthcare Engineers

by | Oct 17, 2019 | Construction, Jared D Epp, Misty S Alexandre, News

Misty Alexandre and Jared Epp presented a plenary session at the 39th Annual Conference of the Canadian Healthcare Engineering Society held in Saskatoon September 22-24.

Their presentation outlined the requirements of the recent prompt payment legislation introduced in Saskatchewan in the fall of 2018.  This legislation will have major impacts on consultants in the healthcare industry when administrating construction contracts for new or renovated facilities.

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