Revenge Porn: In Ontario, You’ll Pay With More Than Karma
/Doe 464533 v N.D. is a January 2016 decision from the Ontario Superior Court of Justice that makes a strong statement that those who engage in revenge porn will pay with more than just karma points!
The case involved an 18-year-old girl, away at university but still texting, phoning, emailing and otherwise connecting with her ex-boyfriend. Though the formal relationship had ended in spring, they continued to see each other “romantically” through the summer and into that autumn. These exchanges included him sending multiple intimate photos and videos of himself, and requesting the same of her.
After months of pressure, she made an intimate video, but was still uncomfortable sharing it. She texted making clear her misgivings and he convinced her to relent, reassuring her that no one else would ever see the video. Eventually and despite her misgivings she sent the video to him.
Shortly thereafter, she learned that her ex had, on the same day he received it, posted the video to an online website. He was also sharing it with some of their high school classmates. She was devastated and humiliated by the discovery, leading to emotional and physical distress that required ongoing counselling, as well as suffering academically and socially.
The video was online for approximately three weeks before his mother (hearing of the incident from the victim) forced him to remove it. As the Judge points out, “[t]here is no way to know how many times it was viewed or downloaded during that time, or if and how many times it may have been copied onto other media storage devices…or recirculated.”
The damage is not, of course, limited to that three-week period – it is persistent and ongoing. She continues to struggle with depression and anxiety. She lives with the knowledge that former classmates and community members are aware of the video (and in some cases have viewed it), something that has caused harm to her reputation. In addition, she is concerned about the possibility that the video may someday resurface and have an adverse impact on her employment, her career, or her future relationships.
The police declined to become involved due to the age(s) of those involved, but she did bring a civil action against him.
She was successful on her claim of breach of confidence.
She was successful on her claim of intentional infliction of mental distress.
But where it gets really interesting is in Justice Stinson’s assessment of the invasion of privacy claim.
Building upon the recognition of a tort of intrusion upon seclusion in Ontario, he returns to that analysis to locate the injury here as one not of intrusion but of public disclosure of embarrassing facts.
Normally, the three factors necessary to show such a tort would be:
- The disclosure must be a public one.
- The facts disclosed must be private; and
- The matter made public must be one which would be offensive and objectionable to a reasonable man of ordinary circumstances.
It is incontrovertible that the video was publicly disclosed. The subject matter of the video – apparently her masturbating – is certainly private. The first two elements are made out.
Here is where the judge wins my heart – he refuses to layer sexual shame on an already victimized plaintiff. Instead of focussing on the subject of the video (her masturbating), he modifies the final requirement so that the requirement is that either the matter publicized or the act of publication itself would be highly offensive to a reasonable person.
In this case, it is the behaviour of the ex that is offensive:
…the defendant posted on the Internet a privately-shared and highly personal intimate video recording of the plaintiff. I find that in doing so he made public an aspect of the plaintiff’s private life. I further find that a reasonable person would find such activity, involving unauthorized public disclosure of such a video, to be highly offensive. It is readily apparent that there was no legitimate public concern in him doing so.
Justice Stinson issues an injunction directing the ex to immediately destroy any and all intimate images or recordings of the plaintiff in whatever form they may exist that he has in his possession, power or control. A further order permanently prohibits him from publishing, posting, sharing or otherwise disclosing in any fashion any intimate images or recordings of her. Finally, he is permanently prohibited from communicating with her or members of her immediate family, directly or indirectly.
As for damages, the judge mentions that her claim is limited by procedure to $100,000. He then considers the following:
- · The circumstances of the victim at the time of the events, including factors such as age and vulnerability. The plaintiff was 18 years old at the time of the incident, a young adult who was a university student. Judging by the impact of the defendant’s actions, she was a vulnerable individual;
- · The circumstances of the assaults including their number, frequency and how violent, invasive and degrading they were. The wrongful act consisted of uploading to a pornographic website a video recording that displayed intimate images of the plaintiff. The defendant’s actions were thus very invasive and degrading. The recording was available for viewing on the Internet for some three weeks. It is impossible to know how many times it was viewed, copied or downloaded, or how many copies still exist elsewhere, out of the defendant’s (and the plaintiff’s – and the Court’s) control. As well, the defendant showed the video to his friends, who were also acquaintances of the plaintiff. Although therewas no physical violence, in these circumstances, especially in light of the multiple times the video was viewed by others and, more importantly, the potential for the video still to be in circulation, it is appropriate to regard this as tantamount to multiple assaults on the plaintiff’s dignity;
- · The circumstances of the defendant, including age and whether he or she was in a position of trust. The defendant was also 18 years of age. He and the plaintiff had been in an intimate – and thus trusting – relationship over a lengthy period. It was on this basis, and on the basis of his assurances that he alone would view it, that he persuaded her to provide the video. His conduct was tantamount to a breach of trust; and
- · The consequences for the victim of the wrongful behaviour including ongoing psychological injuries. As described above, the consequences were emotionally and psychologically devastating for the plaintiff and are ongoing
He awards:
General damages: $50,000
Aggravated damages (where injury was aggravated by the manner in which it was done): $25,000
Punitive damages: $25,000
With pre-judgement interest and her costs for the action, the full award is $141,708.03
Is it enough to make up for the violation? No, but I can’t imagine any amount would be. I hope it’s enough to make the next malicious ex think twice before engaging in this type of behaviour.
On top of that, she gets validation.
She gets recognition that NOTHING she did was inappropriate or offensive.
The judge commends her for earning her undergraduate degree despite these events, as well as for her courage and resolve in pursuing the remedies to which she is entitled. Further, he lets her know that through that courage, she has set a precedent that will allow others who are similarly victimized to seek recourse.
