 Hi, it's Milen Chao, and this is TORTS Introduction and Intentional TORTS Module 4a Part C. In this part, we will look at two relatively new intentional torts which deal with breaches of privacy. They are called Intrusion Upon Seclusion and Public Disclosure of Private Facts. This is a list of the torts that we'll cover in this module. We've already looked at battery. One thing to keep in mind, all of these intentional torts have in common, is that they have an intentional act which caused harm. So one specific aspect of that to keep in mind is that the physical act itself has to be intentional. There does not need to be an intent to cause harm. The intent to cause harm is not a requirement, only that the act was done intentionally. In our modern society, we have ongoing concerns about our privacy, especially when our privacy is breached. There is an ongoing legal question as to whether or not someone can sue for a breach of privacy, whether there is a tort for a breach of privacy. In 2012, the Ontario Court of Appeal, which is the highest court in Ontario, dealt with that issue in the case of Jones and Tessig. In that case, the facts involve a Sandra Jones. Sandra Jones had sued Winnie Tessig. Both of them worked at Bank of Montreal. So Winnie had surreptitiously looked at Jones' or Sandra's banking records, because Winnie as a part of her job had access to these records. Sandra and Winnie didn't know each other, but Winnie did know that Sandra was now living with her former husband. So Winnie was curious about Sandra's financial situation. So she used her access as an employee to look at Sandra's banking records at least 174 times over a period of four years. So when Sandra discovered what had gone on, obviously she was very upset and she sued Winnie. So Sandra says that her privacy interest in her confidential banking information has been irreversibly destroyed and she claimed damages of $70,000 for invasion of privacy. The legal issue that the court had to deal with here was, does Ontario law recognize a cause of action for invasion of privacy? Or in other words, is there a tort for invasion of privacy? They talked about the fact that this issue actually has been debated for the past 120 years and has never been fully resolved by the courts. The court did determine that there can be a tort for breach of privacy. So they call it a tort of intrusion upon seclusion. So it has a nice ring to it, intrusion upon seclusion. So the court set out a number of different requirements for this tort of intrusion upon seclusion. The first requirement is that the defendant's conduct must be intentional. The second requirement is that the defendant must have invaded with a lawful justification. The plaintiff's private affairs are concerns. And the third and last requirement is that a reasonable person would regard the invasion as highly offensive, causing distress, humiliation, or anguish. So the court applied that legal test to the facts. And it came to the obvious conclusion that Winnie to Sigg had committed the tort of intrusion upon seclusion. The three elements of the tort had been satisfied. What Winnie did was intentional and it amounted to an unlawful invasion of Jones's private affairs and it is viewed as highly offensive to a reasonable person and caused distress, humiliation, or anguish. To sum up, based on the Jones and Sigg case of the Ontario Court of Appeal, the four requirements for the tort of intrusion upon seclusion are. First, the defendant intentionally or recklessly. Second, invaded the plaintiff's private affairs without lawful justification. Third, in a way that a reasonable person would consider highly offensive. And fourth, that caused distress, humiliation, or anguish. All four of those requirements need to be met in order to have a tort of intrusion upon seclusion. The Court of Appeal also said that in terms of the remedy, no actual economic harm needs to have been suffered. But compensatory damages are appropriate, but they are capped at a maximum of $20,000. The amount that they actually awarded in the Jones and Sigg case was $10,000. Following the lead of the Court in the Jones and Sigg, our next case pushes the frontier even further in terms of the courts using torts to address breaches of privacy in the internet age. In 2016, the Ontario Superior Court recognized a new tort called the tort of public disclosure of private facts. As the name of that new tort suggests, it covers situations where private facts about a person, including photos and videos, are disseminated via the internet without that person's consent. Most typically, it involves the unauthorized uploading of sexually explicit photos or videos. The name of the case is Jane Doe, 464533 NND. Please note that those are not the actual or full names of the parties involved in this case. The Court had banned the publication of any information that would identify the plaintiff in this case in order to protect her privacy. The facts in this case involved high school sweethearts in a small Ontario town. When they graduated from high school, the plaintiff moved away for university. The couple officially broke up, but they continued to see each other romantically off and on. They kept in touch online via text messages and by telephone. By the fall of 2011, they were both 18 years of age. The defendant repeatedly asked the plaintiff to send him a sexually explicit video of herself. Even though she refused his request, he kept asking and pressuring her. He even sent intimate pictures and videos of himself to her. Eventually, she relented with the defendants of promise that no one else would see the sexually explicit video she had made of herself. Within just a day of receiving the video from the plaintiff, the defendant had posted the video to an internet pornography website. He even showed the video to several of his friends from their hometown. The video was available online for about three weeks before it was taken down. Once the plaintiff became aware of the online video, she was devastated, humiliated and distraught. She could not eat or sleep, she could not function at school, she cried for most days and had no emotional life and she said that she felt like a very cold person and felt like everything in my life and all of my beliefs and morals had been stolen from me. She experienced serious depression and emotional upset. The defendant has never apologized and he has never shown any remorse. Before getting into the legal issues, the judge in this case, Justice Stinson, gave some background by recognizing the problem the internet has created by enabling predators and bullies to victimize others by releasing their nude photos and intimate videos without consent. As further background, Justice Stinson noted that there is a new criminal offense of publication of an intimate image without consent. That criminal offense was enacted in 2014, which is after the incident in this case, which was in 2011. Therefore, the defendant in this case was never charged with any criminal offense. This civil lawsuit was the only remedy available to the plaintiff. This case is the first in Canada to impose civil liability under tort for the unauthorized publication of intimate images. The legal issues in this case were whether the defendant had committed any one or more of four different torts, which were breach of confidence, intentional inflection of mental distress, intrusion upon seclusion, and the new tort of public disclosure of private facts. And if the defendant did commit any one or more of these torts, the other issue would be what would be the appropriate remedies in terms of compensatory damages, punitive damages, and an injunction. The court did find that the defendant committed the established torts of breach of confidence, intentional inflection of mental distress, and an intrusion upon seclusion. But what makes this case interesting is the new tort of public disclosure of private facts, so that is the only part of the judgment that we will focus on. The court set out the requirements for a tort of public disclosure of private facts, which is, one who gives publicity to a matter concerning the private life of another is subject to liability to the other for an invasion of the other's privacy. If the matter publicized or the act of the publication, a would be highly offensive to a reasonable person, and b it is not of legitimate concern to the public. So that is the applicable law definition of the tort. In applying that definition to this case, the court said that the defendant posted on the internet a privately shared and highly personal intimate video recording of the plaintiff, and that in doing so he made public an aspect of the plaintiff's private life. The court further found that a reasonable person would find such activity involving unauthorized public disclosure of such a video to be highly offensive, and that it is readily apparent that there was no legitimate public concern in him doing so. Therefore, the court concluded that the defendant did commit the tort of public disclosure of private facts. The court then moved on to look at the appropriate remedies that it should give to the plaintiff. In determining the appropriate compensatory damages, the court said that what the plaintiff suffered in this case was analogous to a physical sexual assault. The court gave her general damages of $50,000, which is much more than the $10,000 award in the Jones and Tessig case because of the devastating impact on the plaintiff, which was akin to a sexual assault. And the court also awarded the plaintiff aggravated damages of $25,000 because the posting of the video by the defendant amounted to a breach of trust in that the defendant had promised to the plaintiff that he would not show the video to anyone else. The court also awarded punitive damages to the plaintiff. The court stated the applicable law, which is that an award for punitive damages may be appropriate or the defendant has acted in a high-handed or arrogant fashion or has recklessly disregarded the plaintiff's rights or the potential impact of the defendant's intentional conduct. The defendant's conduct in this case fits that definition because he gave no consideration to the impact of his actions on the plaintiff. He has not apologized and he has shown no remorse. Accordingly, the court awarded punitive damages of $25,000. The total amount of damages awarded was $100,000, which is the total maximum that the court could award under under its procedural rules. If there was no such cap, I think the court would have awarded substantially more to the plaintiff. The court also awarded the remedy of an injunction to the plaintiff. Justice Stinson ordered the defendant to destroy all copies of the video in his possession and control, to never again post the video online or share it with others and to not have any contact with the plaintiff or her family. Let's have a closer look at this definition of the tort of public disclosure of private facts, as it was stated in the Jane Doe and N.D. case. To make sense of this definition, let's break it down into a list of requirements that need to be met in order to prove that someone has committed this tort. The first requirement is that the defendant has publicized a matter, so that certainly would cover uploading something onto an internet site that is publicly available. The second requirement is that the matter concerns the private life of the plaintiff. That certainly covers a sexually explicit video or a picture of someone. I guess with the exception of people who are porn stars where their sexual life is not private, but for most people it would be considered their private life. The third requirement is that the matter publicized or the act of publication is highly offensive to a reasonable person and is not of legitimate concern to the public. There is that exception there in terms of a matter of legitimate concern to the public. That could capture a situation where there's some kind of sexually explicit video that is put onto the internet and available for everyone to see, but let's say the video is about a famous politician who's running for office. The existence and the content of that video might be of legitimate concern to the public and therefore the tort would not apply to that type of situation. The remedies that are available for this tort were applied in the Jane Doe and N.D. case. They are compensatory damages, punitive damages and junction. The thing to note about compensatory damages is that the court did not apply the $20,000 limit that was set in Jones and Sigg for the tort of intrusion upon seclusion because in the Jane Doe and N.D. case the impact of the tort was analogous to a physical sexual assault. It was much more serious than what happened in the Jones and Sigg case. The tort of misappropriation of personality is where one person seeks some kind of advantage by using another person's name or image without that other person's consent. A great example of this involves Michael Jordan. When Michael Jordan was about to be inducted into the basketball hall of fame, the magazine Sports Illustrated ran a special edition and companies bought ads in that special edition. There were a couple of companies that were Chicago area grocery stores that put in ads. This is one ad here from Dominic's Finer Foods. It indicates congratulations, Michael Jordan, number 23. You are a cut above and then below that is a $2 coupon for a steak. So Michael Jordan sued Dominic's Finer Foods and the other grocery store that ran an ad, a similar ad as well. It was an American case of course, but the tort involved was the misappropriation of personality. The court ruled in favor of Michael Jordan and awarded him damages of $8.9 million for that tort of misappropriation of personality.