May 18, 2020

Does Ontario Really Need a Fourth Privacy Tort?

Yenovkian v. Gulian, 2019 ONSC 7279 (CanLII)

Several months ago, in the decision of Yenovkian v. Gulian, the Ontario Superior Court of Justice recognized a new privacy tort known as "publicity placing person in false light." This tort appears unique and useful at first glance, but in my view it is actually superfluous as its elements are virtually identical to the tort of defamation while also being more onerous to prove.

In the following post I discuss the history of privacy torts in Ontario, followed by an examination of the Court's reasoning in Yenovkian. I then discuss why, in my respectful view, the tort of defamation already provides sufficiently robust protection against false public portrayals and conclude that Ontario ought not to recognize this fourth privacy tort.

A brief history of privacy torts in Ontario

There is no blanket protection against "invasion of privacy" in the Province of Ontario. However, over the last decade the courts have gradually developed specific privacy-related torts. The first came in Jones v. Tsige, when the Ontario Court of Appeal recognized the tort of "intrusion upon seclusion." The Court, being cognizant of the concern that recognizing privacy protections would open the "floodgates" of litigation, imposed significant limitations upon the tort. To be successful, a plaintiff must establish the following:

  1. That the defendant's conduct was intentional or reckless;
  2. That the defendant invaded, without lawful justification, the plaintiff's private affairs or concerns; and
  3. That a reasonable person would regard the invasion as highly offensive, causing distress, humiliation or anguish.

The Court held that damages for this tort should be modest. It capped damages at a mere $20,000 (though aggravated and punitive damages may be available in certain exception cases).

The Court in Jones interestingly noted that a second privacy tort already existed in Ontario, namely "appropriation of plaintiff's name or likeness." This tort essentially protects individuals against identity theft. The tort had been previously recognized in a lower court decision in 1977, but the Court of Appeal's 2012 decision cemented its existence in Ontario law.

In two more recent cases, the lower courts recognized a third privacy tort, "public disclosure of private facts." This tort's recognition was closely related to the phenomenon of "revenge porn." In both cases, the defendant had published sexual videos of his partner on internet pornography sites. The elements of the tort are as follows:

  1. The defendant publicized an aspect of the plaintiff's private life;
  2. The plaintiff did not consent to the publication;
  3. The matter publicized or its publication would be highly offensive to a reasonable person; and
  4. The publication was not of legitimate concern to the public.

Each of these three invasion of privacy torts could be traced to William L. Prossner's seminal article "Privacy" (1960), 48 Cal. L. Rev. 383, which the the American Law Society had subsequently adopted in the Restatement (Second) of Torts (2010). They were, in other words, already well-established in the United States, and recognizing them in the Province of Ontario was therefore hardly a radical suggestion. But Prossner's article and the American Restatement had also included a fourth privacy tort, known as "publicity placing person in false light." As of 2019, Ontario had recognized only 3 of the 4 torts in the privacy quartet. The fourth would finally gain acknowledgement in in the Yenovkian decision.

The decision in Yenovkian

Yenovkian was a tragic case about a father who spent years cyberbullying his ex-wife and posting videos on the internet of his court-ordered access visits with his children (both in person and over Skype) along with videos of him describing his daughter, who suffers from a neurological disorder, as looking drugged and having a broken mind. The Court dealt with a myriad of family law issues relating to support, access and equalization, but also took up the issue of whether the defendant should be found liable for invasion of privacy.

Kristjanson J. noted that the remaining tort in the "four-tort catalogue" had not yet been recognized and that the case before her provided the appropriate opportunity to do so. Quoting from the American Restatement, the Court held that a plaintiff seeking to make out this cause of action must establish:

  1. The defendant placed the plaintiff before the public in a false light that is highly offensive to a reasonable person; and
  2. The defendant had knowledge of, or acted in reckless disregard as to, the falsity of the publicized matter and the false light in which the plaintiff was placed.

The Court contrasted this new tort with the existing tort of defamation, stating that "while the publicity giving rise to this cause of action will often be defamatory, defamation is not required." The plaintiff need not demonstrate injury to her reputation, only that "a reasonable person would find it highly offensive to be publicly misrepresented as they have been." On the other hand, the Court noted that the harm arising from the defendant's invasion of privacy was "akin to defamation." As such, non-pecuniary damages were assessed precisely as they would have been had the plaintiff sued in defamation - by appealing to the factors described by the Supreme Court in its seminal decision, Hill v. Church of Scientology.

Akin to defamation

While the tort of publicity placing person in a false light may be theoretically distinct from the existing tort of defamation, in practice it has no unique or independent content. In order to make out the false light tort, the plaintiff must prove that a "reasonable person would find it highly offensive to be publicly misrepresented as they have been." Kristjanson J. stated that defamation of character is not required, but in practice it will invariably be present. It seems highly unlikely that there would ever be situation in which a person is placed in a false light that is "highly offensive to a reasonable person" but would somehow not "tend to lower the plaintiff's reputation in the eyes of a reasonable person," which is the definition of a defamatory publication. In what circumstance, in other words, could a false light depiction be objectively highly offensive but not injurious of the person's reputation? The two concepts are nearly synonymous and one would be very hard-pressed to conceive of a real-world scenario where the former is present but not the latter.

The tort of defamation is also already broad enough to encompass the concept of a "false light." As any defamation lawyer knows, the tort is concerned not only with the literal meaning of words, but with inference and innuendo as well. A photograph or video that places someone in a false light and causes injury is therefore prima facie defamatory. And if, in the course of portraying the plaintiff in a false light, the defendant includes some facts that are true, the plaintiff can also sue for "public disclosure of private facts," as discussed above. There is therefore no 'gap' in need of filling. The tort of defamation is robust enough to cover any practical circumstance where a plaintiff would want to seek damages for being publicly placed a in a false light.

Moreover, this new tort will actually be more difficult for plaintiffs to establish than traditional defamation. Under the law of defamation, once a plaintiff establishes that publication is defamatory, the onus shifts to the defendant to prove either that impugned publication was true (justification) or that it was an honestly held opinion based on fact on a matter of public interest (fair comment). By contrast, a plaintiff seeking to establish the tort of publicity placing person in false light has the onus of establishing both that the public portrayal was false and that the defendant knew or recklessly disregarded that the public portrayal was false. This is akin to proof of malice, which a plaintiff in the defamation context is not required to prove unless a defendant makes out a defence of fair comment or qualified privilege. A defendant who publishes something false, but which he reasonably believed to be true, will still be found liable for defamation. That same defendant, however, will not be found liable for publicity placing person in false light since he did not know that the statement was false or act with reckless disregard to its falsity. In sum, the plaintiff's onus of proving false light is higher than proving defamation and, unlike defamation, a plaintiff must effectively prove malice as a basic element of the tort.

There is one potential reason for desiring this separate tort. Several years ago, the Ontario legislature enacted s.137.1 of the Courts of Justice Act, known colloquially as Ontario's anti-SLAPP law, which limits the right of a plaintiff to sue for defamation. Since the law's enactment, ,any lawsuits have been dismissed at the outset based on a determination by the court that the public interest of the expression outweighs the harm caused to the plaintiff. If s.137.1 only applies to actions pleaded in defamation, then the establishment of this new privacy tort would certainly provide litigants with a viable strategy to circumvent those provisions and avoid a preliminary motion to dismiss the claim. However, the text of s.137.1 of the Court of Justice Act suggests that it would also apply to a claim based on publicity placing person in false light. The section does not speak of "defamation," "libel" or "slander" actions, but rather of "expression," which is defined broadly to include "any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity." It also speaks broadly of "harm" as opposed to "damage to reputation" or "reputational harm." The section is concerned, in other words, not with a specific cause of action, but with the underlying facts giving rise to the legal proceeding. It seems highly likely a court would conclude that plaintiffs cannot escape the application of s.137.1 simply by pleading the matter as "publicity placing person in false light" instead of defamation.

Conclusion

The Court in Yenovkian correctly noted that the "harm arising from the invasion of privacy in the present case is akin to defamation." The defendant had falsely accused the plaintiff of kidnapping, abusing and drugging her children, forging documents and defrauding government. All of this could have and should have been addressed under well-established defamation law. There was simply no need to create a new tort, especially in circumstances where the court did not have the benefit of adversarial argument since the defendant was unrepresented by counsel and did not even attend the trial.

It is truly fortunate that Ontario has, over the last decade, established recourse for plaintiffs whose privacy has been breached. In the internet age especially, a serious breach of privacy can cause significant emotional, psychological and financial harm to individuals and these wrongs require remedies. The establishment of a fourth tort, however, is unnecessary. It may be the case that in the United States, with its far more defence-friendly defamation regime, a tort of publicity placing person in false light makes sense. But it is candidly out of place in more generous defamation jurisdictions such as Ontario.