“Publicity Putting the Plaintiff in a False Mild” is the Latest Privateness Tort in Ontario

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Ontario Superior Court recognizes new “false light” privacy tort

What happened?

A couple married in 2000 and had two children, ages nine and twelve. In 2016, the couple separated and the mother left Canada with her children for the UK. This departure sparked years of litigation for the couple, including the Hague Proceedings for the Children’s Return to Canada and a family law dispute in Ontario. During this time, the father carried out a year-long cyberbullying campaign against the mother, which lasted until the last day of this family law process. The father’s cyberbullying included posting on websites, YouTube videos, online petitions, and emails listing personal, private information and allegations of abuse against the mother, her children, and his in-laws. He also filmed judicial access visits with his children, which he then edited and posted online with abusive comments. The couple’s daughter, who has a neurological disorder and is on the autism spectrum, was often the center of the father’s posts as well. The father accused the mother and her family of kidnapping and drugging the daughter and made frequent comments on her development in his online public posts.

The father’s cyberbullying continued despite an Ontario court order prohibiting him from filming or recording his children. Instead, the father created another online campaign to “disempower” the nameless justice of the Ontario Supreme Court (the “Court”) based on their decisions on the case.

During the family law trial, the mother filed a civil lawsuit against the father seeking $ 150,000 for invasion of seclusion, willful infliction of mental illness, invasion of privacy, and $ 300,000 in punitive damages.

What did the Tribunal say?

We reviewed the current law and outlined the previously recognized privacy-related intrusions into seclusion[1] and public disclosure of embarrassing private facts.[2] In particular, the Court has re-examined the “catalog of four offenses” described in a landmark privacy article by an American professor approved by the American Law Society. That catalog contained the tort of “Advertising Plaintiff in the Wrong Light in Public,” which was the only remaining tort not yet recognized by Ontario law.

The Court ruled that this remaining tort of “advertising that puts the plaintiff in the wrong light” should be recognized in this case and would be found in the following circumstances if:

  • The false light in which a party has been placed would be most offensive to a sane person. and
  • The actor was aware of the falseness of the matter published and the false light in which the party would be placed, or acted in reckless disregard.

The Court distinguished this new tort from libel. The Court made it clear that while the publicity giving rise to the cause of the action is often defamatory, defamation is not required as the test only requires a reasonable person to find it extremely offensive to be so publicly misrepresented become as it was. Furthermore, the actor may be held liable whether the advertisement in this new tort is true or false.

The court eventually ruled that the father’s conduct in this case complied with the requirements of the nature of the invasion of privacy (including this new tort) and the deliberate infliction of mental distress. In assessing the appropriate compensation for the violation of this new tort, the Court used the following four-factor test in libel cases:

  1. the nature of the false advertising and the circumstances in which it was made;
  2. the nature and position of the victim of false advertising;
  3. the potential impact of the false announcement on the plaintiff’s life; and
  4. the actions and motivations of the accused.

The court found the father’s conduct was particularly egregious and granted the mother $ 100,000 for the tort of privacy invasion, in addition to the $ 50,000 and $ 150,000 she made for the deliberate infliction received from psychological suffering or punitive damages.

Take away for employers

While this new tort was recognized in the context of a family law dispute, it is important to employers as it provides legal action for both employees and employers who have been the subject of false public statements.