In a Canadian first, a judge has likened the posting of an intimate video over the Internet to a sexual assault, and ordered an Ontario man to pay $100,000, plus $41,708 in court costs and interest, to his former girlfriend.
The ruling fills a gap in the law by allowing individuals whose intimate images have been published without their consent to sue for breach of confidence. It comes as social-media websites such as Instagram and Snapchat grow in popularity, the sharing of explicit messages known as "sexting" becomes more common and some people set out to inflict harm on others by publishing "revenge porn." Until now, there has been no way for victims of this sexualized form of cyberbullying to sue for damages – except in Manitoba, which passed an intimate-images law last year.
"It is appropriate to regard this as tantamount to multiple assaults on [the woman's] dignity," Justice David Stinson of the Ontario Superior Court wrote in his ruling late last week, saying it is impossible to know how many times the video was downloaded or copied, or whether it is still in circulation. (The man, known as N.D., told the woman he took down the video after three weeks.) "In many ways, it is analogous to a sexual assault," the judge said. He examined several lawsuits involving sexual assaults to determine the amount of damages the man should pay.
The ruling is broad enough that it could give celebrities targeted by paparazzi a legal foundation for lawsuits, legal experts say. And it might even mean that authors of memoirs or biographies need to be careful about what intimate details they disclose.
The woman, known as Jane Doe464533, agreed under pressure from her ex-boyfriend to send him a sexually explicit video, after he promised he wouldn't show it to anyone. That very day, in the fall of 2011, he posted the video on an Internet pornography website, titling it "college girl pleasures herself for ex boyfriends delight," and showed it to his friends. Eighteen at the time, the woman was "devastasted, humiliated and distraught," Justice Stinson said, citing the fact that her mother took her to a crisis centre for her distress, that she cried for days and that, even four years later, is still emotionally fragile and worried the video may resurface and harm her career or future relationships.
N.D., who was a university student at the time, did not defend the lawsuit. His position was therefore not represented in the court case. The judge said he knows of no other case in Canada in which someone who has had intimate images posted on the Internet has sued for damages.
Wayne MacKay, a Dalhousie law professor who chaired a cyberbullying task force for Nova Scotia, said the ruling breaks new ground for victims. "It's really important," he said. "I'm quite excited by it because there isn't a whole lot out there. This is a really important precedent potentially across the country."
David Fraser, a privacy lawyer in Halifax, said the case shows "that the law works, that the common law in Canada evolves to keep up with changing circumstances."
Justice Stinson based his ruling in common-law notions of breach of confidence and privacy. He formulated the legal test for a breach of confidence in an intimate-images lawsuit this way: "One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of the other's privacy, if the matter publicized or the act of publication (a) would be highly offensive to a reasonable person and (b) is not of legitimate concern to the public."
Peter Jacobsen, a lawyer who represents media organizations, including The Globe and Mail, said the test could be used to apply to paparazzi or the disclosure of the personal details of others in memoirs. "The only concern I have is that there should be a very expansive view of 'legitimate concern to the public,'" he said.
N.D., reached by phone, said he has read the ruling. "I have nothing to say."
Toronto lawyer Donna Wilson, who represented the woman in the case, said her client had gone to police, but there was no law making it a crime to publish intimate images without consent – Parliament passed such a law in 2014 – and because she was 18 she was not covered by the child-pornography criminal law. So police had no way to hold N.D. to account. "For her it was mainly about having some sort of vindication that she was wronged," Ms. Wilson said.
She said she expects her client will be able to collect on the judgment – in instalments. "His name is subject to a publication ban but not an anonymity order," she said of N.D. "We are entitled to serve the judgment on his employers. We told him that we will hold off on that so long as he sends us $1,000 a month. He agreed."
Ms. Wilson added: "I think that a lot of the harm that's been caused in these cases – like in the Amanda Todd and Rehtaeh Parsons cases – is that people would blame them and didn't take them seriously and treat them like the victims they were. The court's message in this case, that this is wrong, it's a big deal and it's not the victim's fault, I think that's huge." Ms. Parsons, 17, of Nova Scotia, and Ms. Todd, 15, of British Columbia, took their own lives after cyberbullying involving intimate images.