Tort law aka civil claims for damages is not a fixed class. An example of a Tort that we are all familiar with is negligence such as when a person is not paying attention and causes you harm in a motor vehicle accident. However, as society and technology moves along Tort law, which is generally judge-made law, evolves and in rare circumstances creates a new tort or cause of action to sue someone.
In the Alberta Court of Queen’s Bench decision, in ES v. Shillington released on September 16, 2021 the court created a new tort called public disclosure of private facts. The concept has been driven by the 21st century phenomenon of revenge porn postings on the internet. In this particular case, a woman’s long-standing boyfriend contrary to her specific instructions released intimate photographs that she had sent on to her boyfriend as a private gift. Without her permission and contrary to her specific instructions, he over a number of years posted these photographs on various social media outlets, which eventually found their way onto the internet. His behavior towards her included other horrible misdeeds such as assault, battery, sexual assault and intentional infliction of mental distress. The judge held, for a case like this to be successful, there needs to be at least four factors. One, the defendant publicized an aspect of the plaintiff’s private life. Two, the plaintiff did not consent to the publication. Three, the matter publicized or its publication would be highly offensive to a reasonable person in the position of the plaintiff. Four, the publication was not a legitimate concern to the public.
The defendant, a member of the Canadian Armed Forces, never defended the action and the court penalized him significantly. The Court ordered general damages of $80,000, aggravated damages of $25,000 and punitive damages of a further $50,000. Further, costs were awarded against him. Obviously, this is behaviour that could not be taken lightly and now there is an additional remedy. This Alberta case follows on the heels of a 2016 decision, Jane Doe 464533 v. Capital N. D. , in which the 18 year old defendant shared a sexually explicit video of he and his one-time girlfriend online. In that particular case, damages of over $100,000 were assessed against the defendant. This in turn is also based upon an earlier decision Jones v. Tsige which granted $10,000 in damages after a bank employee illicitly checked out confidential information about her husband’s former wife. The court set no cap on the amount of damages, leaving it for each individual court to make its own assessment. This is a dignity based tort and an example of the court expanding its abilities even in the absence of any legislation to assist.
These claims for damages can even be part of estate litigation, when a victim pursues a claim against a deceased, but it must be done in a timely fashion. This all sounds complicated and it is, but it shows one of the strengths of the Common Law system we enjoy, namely it is not static and Judges as well as Legislators can create new laws.