January 2016 saw the Ontario Superior Court find that publishing a private intimate video of another could result in damages. In January 2017, the same court re-opened the decision allowing that Defendant a second opportunity to present his Defence.
In Jane Doe 464533 v. N.D., the Defendant posted an intimate video of his ex-girlfriend to a pornographic website and distributed it to his group of friends. He knew the girl was hesitant to provide the image and that she did so believing it would be kept private. The act devastated the Plaintiff’s life resulting in depression and panic attacks and causing her to miss terms at university.
The court acknowledged that “technology has enabled predators and bullies to victimize others by releasing their nude photos or intimate videos without consent.” The judge further noted that it was now a criminal offence to publish an intimate image without consent.
The judge recognized the Defendant’s act was a breach of privacy, finding a tort in Ontario of the public disclosure of private facts. This progressive decision awarded the Plaintiff a total of $141,708.03 inclusive of costs and interest.
The Defendant in the Jane Doe decision did not file a Statement of Defence. Because of this, he was not able to participate in the hearing where the judge made the decision above. He later requested the court to set aside the decision and allow him to file a Defence. This request has now been appealed and allowed. The case will start over and he will be permitted to participate throughout the process.
The court’s original findings on the public disclosure of intimate details will advance the law on privacy. The decision was a positive step in the protection against sexualized and gender-based violence including the disclosure of intimate private images. The conclusion to re-open the case and allow the Defendant to file a Defence detracts from the importance of the law made in the original decision.
It is also likely to be a devastating set-back for the Plaintiff. I hope that she is able to continue with the case and that a new decision on the merits continues to recognize the right to privacy as integral in our society.
If you have experienced gendered violence or a breach of your privacy, you should speak to a human rights lawyer. You can reach us at [email protected] or 647-204-8107.
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