In December 2019, a Superior Court judge awarded damages for the first time for a new privacy tort ("Publicity which places the plaintiff in a false light in the public eye") in Yenovkian v. Gulian, 2019 ONSC 7279.
This matter arose from an acrimonious divorce. The judge, Justice Kristjanson, found that the husband, Mr. Yenovkian, created websites on which he posted, among other things, allegations of child abuse against his wife, Ms. Gulian, and videos of their child purporting to show the damage done by the alleged abuse. He also accused his wife of other crimes including theft, kidnapping, and fraud.
Justice Kristjanson considered whether the facts she found could make out a claim for an invasion of privacy. In doing so, she considered the Ontario Court of Appeal's seminal decision in Jones v Tsige. In that decision, the court considered whether there might be some previously unrecognized privacy torts, specifically:
- Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs.
- Public disclosure of embarrassing private facts about the plaintiff.
- Publicity which places the plaintiff in a false light in the public eye.
- Appropriation, for the defendant's advantage, of the plaintiff's name or likeness.
The Court of Appeal in Jones defined the test for intrusion upon seclusion after a bank employee snooped repeatedly in the bank records of her ex-husband's new partner. In 2016, in Jane Doe 464533 v ND, a judge of the Superior Court recognized and applied a new tort "publicly disclosing the private facts of another" after a defendant posted a sexually explicit video of his former girlfriend online.
This decision applies and recognizes, for the first time, the third tort considered by the Court of Appeal in Jones, publicity which places the plaintiff in a false light in the public eye. Justice Kristjanson defined the test for this tort as follows:
One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if
(a) the false light in which the other was placed would be highly offensive to a reasonable person, and
(b) 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 other would be placed.
Justice Kristjanson recognized that this tort would significantly overlap with defamation, an already existing cause of action in which a person can obtain damages for any false statement or publication which places them in a negative light. She differentiated the two causes of action by saying:
while the publicity giving rise to this cause of action will often be defamatory, defamation is not required. It is enough for the plaintiff to show that a reasonable person would find it highly offensive to be publicly misrepresented as they have been. The wrong is in publicly representing someone, not as worse than they are, but as other than they are. The value at stake is respect for a person's privacy right to control the way they present themselves to the world.
It is questionable whether this distinction will have any application in real cases, as any publication about a person that is highly offensive is likely to be defamatory. There are unlikely to be many situations in which a positive or neutral but untrue statement would be highly offensive.
This does create an interesting dilemma for potential defendants. In defamation claims, the law has developed to balance the right against defamation with the right to freedom of expression. Defendants have available a number of defences that may excuse them from the defamatory comments, such as qualified privilege and responsible communication on a matter of public interest. However, these defences have not yet been recognized in the common law for this new tort. While this new tort is being developed, a strategic plaintiff could potentially plead this tort to stifle public criticism.
However, Section 137.1 of the Ontario Courts of Justice Act, known as the " anti-SLAPP" provision (SLAPP being an acronym for strategic lawsuits against public participation), could still apply to this tort as it applies to any litigation seeking to discourage expression on matters of public interest and does not specify any particular cause of action.
It remains to be seen what the future holds for this new tort, whether it is necessary in light of the existing common law, and whether it would be upheld in precisely this form, if at all, by the Ontario Court of Appeal or the Supreme Court of Canada. But for now, it provides a new option for plaintiffs who have had false allegations made against them publicly, regardless of whether the statements would qualify as defamatory.