By Catherine Tian and Jeff Li
In the milestone case of Jones v. Tsige (2012), the Ontario Court of Appeal imported to Canada four US privacy torts:
- Intrusion upon a party’s seclusion or solitude, or into his private affairs;
- Public disclosure of embarrassing private facts about a party;
- Publicity which places a party in a false light in the public eye; and
- Appropriation of a party’s name or likeness, for the other party’s advantage.
In the recent family law decision Yenovkian v. Gulian (2019), the Ontario Superior Court of Justice applies the third item, “false light” privacy tort. This cause of action is described in the U.S. §652E of the Restatement (Second) of Torts (2010):
- an individual gives publicity to a matter concerning another that places the other before the public in a false light;
- the false light in which the other 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 other would be placed.
Yenovkian v. Gulian involved a father who cyberbullied his ex-spouse, children and a judge. The cyberbullying campaign included websites, YouTube videos, online petitions, and emails with unsubstantiated accusations and misleading portrayals of the individuals in a negative light despite court orders prohibiting posting. The father also sought to undermine the administration of justice through an online campaign to “unseat” a judge of the Court for rulings made, internet attacks on trial witnesses and the mother’s lawyer, and by flouting court orders and family law disclosure obligations.
The court found that the father’s portrayal of his ex-spouse had resulted in serious harm. With respect to damages, the court adopted the method of looking to the factors analogous to those the mother has suffered from invasion of privacy. The harm arising from the invasion of privacy in Yenovkian is akin to defamation. Accordingly, Justice Kristjanson adapted the factors described in Hill v Church of Scientology of Toronto (1995) to the tort of publicity placing a person in a false light:
- the nature of the false publicity and the circumstances in which it was made,
- the nature and position of the victim of the false publicity;
- the possible effects of the false publicity statement upon the life of the plaintiff, and
- the actions and motivations of the defendant.
The court held that the false publicity by the father was egregious and widely disseminated on the internet. It had a detrimental effect on the mother’s health and welfare, and could be expected to affect her social standing and position as well. The father has not apologized, nor has he retracted the outrageous comments despite court orders. The court proceeded to award $100,000 for the egregious and extreme claims and public suffering, $50,000 for intentional infliction of mental suffering, and $150,000 in punitive damages.
Further, Justice Kristjanson noted that while the publicity giving rise to this cause of action will often be defamatory, proof of 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, because “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.
The court also acknowledged that the false light privacy tort has significant overlap with the separate privacy tort of public disclosure of private facts recognized in the 2016 decision Doe 464533 v. ND. However, while the public disclosure of private facts tort involves true statements, the false light tort involves false or misleading claims. The decision in Yenovkian confirms the recent Ontario trend of judicial openness to novel privacy torts following the earlier recognition of other privacy torts imported from the U.S. Spouses experiencing discord should be exercising caution before publishing accusations or portrayals that could place another before the public in a false light.