An Ontario judge’s decision to award a six-figure sum to a woman whose ex-boyfriend posted a sexually explicit video of her on a pornography website without her consent shows the law is slowly catching up with the reality of non-consensual publication of intimate images, according to Toronto civil litigator Anna Matas.
In Doe 464533 v. N.D, an anonymous woman was awarded $100,000 in damages, on the basis that the posting of her video without her consent met the tests for the torts of breach of confidence, intentional infliction of mental suffering, and a new tort of invasion of privacy.
In settling on the amount, Ontario Superior Court Justice David Stinson drew a stark distinction between her situation and that of the victim in the landmark privacy invasion case Jones v. Tsige, a decision that involved a bank employee who used her position to snoop on the finances of her husband’s former partner.
“I am alert to the relatively modest ($10,000) award in Jones v. Tsige, and the cautionary comments of the Court of Appeal concerning claims for intrusion on privacy of the sort that formed the basis for the plaintiff’s claim in that case. That was a much different situation, however: while it, too, was a case involving ‘invasion of privacy,’ the privacy right offended and the consequences to the plaintiff there were vastly less serious and offensive than the present case,” Stinson wrote in his Jan. 21 judgment.
“This case involves much more than an invasion of a right to informational privacy; as I have observed, in many ways it is analogous to a sexual assault. Given the circumstances of this case, and in particular the impact of the defendant’s actions, a substantially higher award is warranted here.”
“It’s a huge and groundbreaking decision,” says Matas, an associate based in the Toronto office of Lerners LLP. “The criminal law struggled with how to deal with cases where intimate images are distributed non-consensually, and eventually made it a crime in 2015. We’ve seen the civil law struggle with how to address the same issue, for example with the enacting of different forms of legislation in Nova Scotia and Manitoba, but this is a the first reported civil case to deal with these issues.
“I think it was appropriate that Justice Stinson accepted that damages in these cases should be evaluated through analogy to sexual assault. The wide range of psychological harms suffered by victims of the non-consensual distribution of intimate images is very similar to the harms suffered by victims of sexual assault. Victims of the non-consensual distribution of intimate images also have to deal with the same sort of victim-blaming reaction as sexual assault victims,” she says.
“This is a type of harm that has a much larger potential impact on a person than other invasions of privacy,” Matas adds.
According to Stinson’s judgment, the woman at the heart of the case stayed in touch with her high school boyfriend after breaking up when she left to attend university in another city in the late summer of 2011, when both parties were 18 years old. The man sent intimate pictures and video of himself to the woman, and pestered her to do the same, assuring her it would be for his eyes only.
The plaintiff eventually acquiesced, and sent a sexually explicit video of herself to her ex in November 2011. She later discovered it had been uploaded to a porn website within hours, under the title “college girl pleasures herself for ex boyfriends (sic) delight.”
The ex-boyfriend did not defend the lawsuit, and the plaintiff obtained default judgment. Stinson assessed the plaintiff’s general damages at $50,000, plus $25,000 for aggravated damages, and a further $25,000 in punitive damages. Stinson noted in his decision that the claim was brought under the court’s simplified rules, which limited the total possible damages to $100,000.
“I think we will see cases where even higher damages are awarded,” Matas says. “Certainly the harm caused by this type of wrongful conduct is not capped. The non-consensual distribution of intimate images, whether or not part of an ongoing campaign of cyberbullying or sexualized cyberbullying, has the potential to cause devastating and long-lasting psychological damage to a person. It could also impact an individual’s career, as in the case of Manitoba’s Justice Lori Douglas. If an individual — for example, a judge or teacher — lost his or her job because of the non-consensual distribution of an intimate image, this could lead to a significant loss of income claim.
“Once a photo or video is out there on the Internet, it is extraordinarily difficult, and extremely expensive, to remove,” she says. “The consequences to individuals whose photos or videos are shared without consent can be devastating. The Doe decision is a welcome start to addressing, through the civil court system, the myriad problems that may ensue from this wrongful conduct.”