Criminal Law

In a groundbreaking judgment released last week, Madam Justice Avril B. Inglis of the Alberta Court of Queen’s Bench recognized a new claim in law with respect to the public sharing of private information without consent. Justice Inglis’ decision in ES v Shillington has created a new tort in Alberta called “Public Disclosure of Private Facts”.

The parties in Shillington had previously been in a romantic relationship and the Plaintiff had on occasion shared intimate photos that were intended to be viewed only by the Defendant. Near the end of their relationship, the Plaintiff became aware the Defendant had posted the images of her online, without her knowledge or consent, where they became publicly accessible.

The images were shared online as early as 2006 and some were still viewable in 2021. The Plaintiff was identifiable in some of the images, and she was recognized in public on at least one occasion by someone who had viewed the photos online. Not surprisingly, this caused the Plaintiff significant stress, nervous shock, anxiety, humiliation, and long-term psychological and emotional suffering. As the Plaintiff also suffered physical and sexual abuse by the Defendant, she brought claims for battery, sexual assault, breach of confidence, intentional infliction of mental suffering, in addition to the newly proposed tort of Public Disclosure of Private Facts.

Justice Inglis held that each of the claims had been made out and ordered the Defendant to pay significant damages totaling over $300,000, taking into account the egregious breach of trust, number of images posted, the fact that the Plaintiff was identifiable in the images, and the significant and long-standing psychological impact the Defendant’s actions had on the Plaintiff. Justice Inglis also granted a permanent injunction requiring the Defendant to remove all images and prohibiting him from sharing any images of the Plaintiff in the future.

While the high damage award is noteworthy, Justice Inglis’ decision is novel for her recognition of the new tort of “Public Disclosure of Private Facts” and the award of damages on this basis.

For civil claims, plaintiffs are almost always required to prove liability on the basis of an existing type of claim (for example, negligence, battery, etc.). However, courts are permitted to recognize new torts in rare cases where “the facts cry out for a remedy”; in other words, if a new type of claim is required to address wrong-doing that is not sufficiently addressed by existing types of claims.

In the digital age, courts have recognized that the non-consensual sharing of private images over social media is one such area that is inadequately addressed by the traditional categories of tort law. The prior absence of any civil recourse for non-consensual sharing of private images was a pressing concern, especially given the serious nature of the wrongdoing which prompted Parliament to make this a criminal offence in 2015.

Accordingly, this type of claim had already been recognized in other provinces in Canada. In 2016, the Manitoba legislature passed the Intimate Image Protection Act, which created a new statutory tort. The Ontario Superior Court’s 2018 decision in Jane Doe recognized the novel claim of Public Disclosure of Private Facts in another case where the Defendant posted an intimate video of the Plaintiff on a pornography website without her consent. The Nova Scotia Supreme Court followed suit in 2021 with its decision in Racki v Racki, a case in which the Defendant had published a memoir detailing his wife’s addiction issues and suicide attempts.

Alberta has also enacted similar legislation: the Protecting Victims of Non-Consensual Distribution of Intimate Images Act. However, the Plaintiff in Shillington could not rely on this statute because the images were shared before the Act came into force in 2017 and it could not apply retroactively. Furthermore, the Act has a narrower scope; it protects only against the distribution of “intimate” images, as defined under the Act, as opposed to the wider ambit of “private facts” as considered in Racki, noted above.

With Justice Inglis’ decision in Shillington, the tort of Public Disclosure of Private Facts will now be available to plaintiffs in Alberta. To bring a successful claim, a plaintiff must prove each of the following:

• the defendant publicized an aspect of the plaintiff’s private life;
• the plaintiff did not consent to the publication;
• the matter publicized or its publication would be highly offensive to a reasonable person in the position of the plaintiff; and,
• the publication was not of legitimate concern to the public.

In determining whether something is “private”, a court will ask: “what would a reasonable person feel if they were placed in the same position as the claimant faced with the same publicity?” Intimate images will clearly fall into this category.

However, after Shillington, the newly-recognized tort of Public Disclosure of Private Facts can extend beyond the distribution of intimate images to cover a broader range of conduct. The test under the new tort refers to any private information that is disclosed without the person’s consent, would be highly offensive to a reasonable person in their shoes, and is not of legitimate concern to the public. This is a noteworthy decision as it potentially opens the door to civil liability being imposed for the non-consensual disclosure of a wide range of private or sensitive information.