#cyberbullying | #cyberbully | “Publicity Placing The Plaintiff In A False Light” Is The Newest Privacy Tort In Ontario – Privacy



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“Publicity Placing The Plaintiff In A False Light” Is The Newest Privacy Tort In Ontario

Labour, Employment & Human Rights Bulletin | HR Space


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What Happened?

A couple married in 2000 and had two children, aged nine and
twelve. In 2016, the couple separated, and the mother left Canada
for the United Kingdom with their children. This departure
triggered years of litigation for the couple, including Hague
proceedings for the children’s return to Canada and a family
law dispute in Ontario. During this time, the father engaged in a
campaign of cyberbullying against the mother lasting for years, up
to the last day of this family law trial. The father’s
cyberbullying included posting on websites, YouTube videos, online
petitions and emails that detailed personal, private information
and allegations of abuse against the mother, their children and his
in-laws. He also filmed court-ordered access visits with his
children, which he then edited and posted online with offensive
commentary. The couple’s daughter, who has a neurological
disorder and is on the autism spectrum, was often the centre of the
father’s posts as well. The father accused the mother and her
family of kidnapping and drugging the daughter, often commenting
about her development in his public online posts.

The father’s cyberbullying continued despite a court order
in Ontario prohibiting him from filming or recording his children.
Instead, the father created another online campaign to
“unseat” the unnamed justice of the Ontario Superior
Court of Justice (the “Court”) as a result of her rulings
in the case.

During the family law proceedings, the mother brought a civil
claim against the father seeking $150,000 for intrusion on
seclusion, intentional infliction of mental suffering, invasion of
privacy and $300,000 in punitive damages.

What Did the Court Say?

The Court reviewed the current law and outlined the previously
recognized privacy-related torts of intrusion upon
seclusion1 and public disclosure of embarrassing
private facts.2 Notably, the Court revisited the
“four-tort catalogue” outlined in a seminal privacy
article by an American professor that was adopted by the American
Law Society. This catalogue included the tort of “publicity
which places the plaintiff in a false light in the public
eye”, which was the only remaining tort not yet recognized in
Ontario law.

The Court held that this remaining tort of “publicity
placing the plaintiff in a false light” should be recognized
in this case, and would be established in circumstances where:

  • the false light in which a party was placed would be highly
    offensive to a reasonable person; and

  • the actor had knowledge of, or acted in reckless disregard as
    to, the falsity of the publicized matter and the false light in
    which the party would be placed.

The Court distinguished this new tort from defamation. The Court
clarified that although the publicity giving rise to the cause of
action will often be defamatory,  defamation is not necessary
since the test only requires that a reasonable person find it
highly offensive to be publicly misrepresented as they have been.
Further, the actor may be liable whether the publicity is true or
false in this new tort.

The Court ultimately held that the father’s behaviour in
this case met the requirements of the torts of invasion of privacy
(including this new tort) and intentional infliction of mental
suffering. In assessing the appropriate damage award for breach of
this new privacy tort, the Court adopted the following four-factor
test used in defamation cases:

  1. the nature of the false publicity and the circumstances in
    which it was made;

  2. the nature and position of the victim of the false
    publicity;

  3. the possible effects of the false publicity statement upon the
    life of the plaintiff; and

  4. the actions and motivations of the defendant.

Noting that the father’s behaviour was particularly
egregious, the Court awarded the mother $100,000 for the tort of
invasion of privacy, in addition to the $50,000 and $150,000 she
received for intentional infliction of mental suffering and
punitive damages respectively.

Take Away for Employers

Although recognized amidst the backdrop of a family law dispute,
this new privacy tort is of significance to employers as it
provides a legal action for both employees and employers who have
been the subject of false public statements.

Footnotes

1 –Jones v Tsige, 2012 ONCA 32 (Ont
Ca).

2 –Jane Doe 72511 v Morgan, 2018 ONSC
6607. 

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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