Hello, it's Waylon Chow and this is torts introduction and intentional torts module 3a part c In this part, we will look at two relatively new intentional torts, which deal with breaches of privacy They're called intrusion upon seclusion and public disclosure of private facts This is a list of the seven intentional torts that we examine in this module. We've already talked about battery What all these torts have in common is that they all require that there be an intentional act which caused harm So the way to interpret that is that the the physical act must have been done intentionally But the intent to cause harm is not required So again, the the act itself had to have been done intentionally But there does not need to be an intention to cause harm In our modern society, we have ongoing concerns about our privacy Especially when our privacy is is breached there. There is a ongoing legal question as to whether or not someone can sue for a breach of privacy whether there is a tort for a breach of privacy in 2012 the Ontario Court of Appeal, which is the highest court in Ontario You know dealt with that dealt with that issue in the case of Jones and and to SIG So in that case the facts involve a Sandra Sandra Jones Sandra Jones had sued Winnie Winnie to SIG Both of them worked at at Bank of Montreal and so so Winnie had surreptitiously Looked at Jones's or Sandra's banking records because Winnie as a part of her job had access To these to these records, you know Sandra and Winnie didn't know each other but but Winnie did didn't know that Sandra was now was now living with with her former husband and so so Winnie was curious about About the the financial or Sandra's financial situation So so she used her access as an employee to to to look at Sandra's banking records eight at least 174 times over a period of four years So when when Sandra discovered what had gone on obviously she was very upset And and she sued she sued Winnie So Sandra says that her Privacy interest in her confidential banking information has been irreversibly destroyed and she claimed damages of $70,000 for invasion of invasion of privacy The legal issue that the court had to deal with here was you know does Ontario law recognize a cause of action for invasion of privacy or In other words is there a tort for invasion of of privacy And you know they they they talked about the fact that you know this issue actually has been debated for the past 100 120 years has never been never been fully fully resolved by the courts the the court did Determined that there can be a tort for breach of privacy So what they they they call it a tort of intrusion upon seclusion has a nice ring to it intrusion upon seclusion So they the court set out a number of different requirements for this tort of intrusion upon seclusion The first requirement is that the defendant's conduct must be intentional The second requirement is that the defendant must have invaded with a lawful justification The plaintiff's private affairs are concerns and the third and last requirement is that a reasonable person would regard the invasion as highly offensive causing distress humiliation or anguish So the court applied that legal test to the facts and it came to the the obvious Conclusion that that Winnie-to-sig had committed the tort of intrusion upon upon seclusion They do the three the three elements of the tort happens had been satisfied you know what what Winnie did was was intentional and it amounted to an unlawful invasion of of Jones's private affairs and it is it is viewed as highly offensive to a reasonable person and cause distress humiliation or anguish So to sum up What the tort of intrusion upon seclusion requires first again is that the defendant's actions were intentional or reckless Second requirement the defendant invaded the plaintiff's for private affairs with a lawful justification Third requirement a reasonable person would regard the invasion as highly offensive causing distress humiliation or anguish The Ontario Court of Appeals said that an appropriate remedy is Compensatory damages and that there's no need to show any harm that any actual harm was suffered But they did cap the maximum amount of damages at $20,000 so in in the Jones and to-sig case the Jones was awarded half of that maximum amount Which was ten thousand ten thousand dollars? Following the lead of the court in Jones and to-sig our next case pushes the frontier even further in terms of the courts using Torts to address breaches of privacy in the internet age in 2016 the Ontario Superior Court Recognize a new tort called the tort of public disclosure of private facts as the name of that new tort suggests it covers situations where private facts about a person including photos and videos are Disseminated via the internet without that person's consent Most typically it involves the unauthorized uploading of sexually explicit photos or videos The name of the case is Jane Doe 464533 and Nd Please note that those are not the actual or full names of the parties involved in this case The court had banned the publication of any information that would identify the plaintiff in this case in order to protect her privacy The facts in this case involved High school sweethearts in a small Ontario town when they graduated from high school The plaintiff moved away for university the couple officially broke up But they continued to see each other romantically off and on they kept in touch online via text messages and by telephone By the fall of 2011 they were both 18 years of age The defendant repeatedly asked the plaintiff to send him a sexually explicit video of herself Even though she refused his request he kept asking and pressuring her he even sent intimate pictures of Intimate pictures of and videos of himself to her Eventually she relented with the defendants of promise that no one else would see the sexually explicit video She had made of herself Within just a day of receiving the video from the plaintiff the defendant had posted the video to an internet pornography Website he even showed the video to several of his friends from their hometown The video was available online for about three weeks before it was taken down Once the plaintiff became aware of the online video. She was devastated humiliated and distraught She could not eat or sleep. She could not function at school She cried for most days and had no emotional life And she she said that she felt like a very cold person and felt like everything in my life and all of my beliefs and morals Had been stolen from me She experienced serious depression and emotional upset the defendant has never apologized and he has never shown any remorse Before getting into the legal issues the judge in this case Justice Stinson gave some background by recognizing the problem the internet has created By enabling predators and bullies to victimize others by releasing their nude photos and intimate videos without consent As further background Justice Stinson noted that there is a new criminal offense of publication of an intimate image without consent That criminal offense was enacted in 2014 Which is after the incident in this case, which was in 2011 Therefore the defendant in this case was never charged with any criminal offense This this this civil lawsuit was the only remedy available to the plaintiff This case is the first in Canada to impose civil liability under tort for the unauthorized publication of intimate images The legal issues in this case were whether the defendant had committed any one or more of four different torts Which were breach of confidence intentional infliction of mental distress intrusion upon seclusion and the new tort of public disclosure of private facts and If the defendant did commit any one or more of these torts The other issue would be what would be the appropriate remedies in terms of compensatory damages punitive damages and an injunction The court did find that the defendant committed the established torts of breach of confidence intentional infliction of mental distress and intrusion upon seclusion But what makes this case interesting is the new tort of public public disclosure of private facts So that is so that is the only part of the judgment that we will focus on the court Set out the requirements for a tort of public disclosure of private facts So which is 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 the publication a would be highly offensive to a reasonable person and B It is not of legitimate concern to the public So that is the applicable law definition of the tort In applying that definition to this case The court said that the defendant posted on the internet a privately shared and highly personal intimate video Recording of the plaintiff and that in doing so he made public an Aspect of the plaintiff's private life The court further found that a reasonable person would find such activity Involving unauthorized public disclosure of such a video to be highly offensive and that it is readily apparent That there was no legitimate public concern in him doing so Therefore the court concluded that the defendant did commit the tort of public disclosure of private facts The court then moved on to look at the appropriate remedies that that it should give to the plaintiff in Determining the appropriate compensatory damages the court said that what the plaintiff suffered in this case was analogous to a physical sexual assault The court gave her general damages of fifty thousand dollars Which is much more than the ten thousand dollar award in in the Jones and to SIG case because of that of the devastating impact on the plaintiff which was akin to a sexual assault and the court also awarded awarded the plaintiff aggravated damages of $25,000 because the posting of the video by the defendant Mounted to a breach of trust and that the defendant had promised to the plaintiff that he would not show the video to anyone else The court also awarded punitive damages to the plaintiff the court stated the applicable law Which is that an award for punitive damages may be appropriate or the defendant has acted in a high-handed or arrogant fashion or has recklessly Disregarded the plaintiff's rights or the potential impact of the defendant's intentional conduct The defendant's conduct in this case fits that definition Because he gave no consideration to the impact of his actions on the plaintiff He has not apologized and he has shown no remorse Accordingly the court awarded punitive damages of twenty five thousand dollars The total amount of damages awarded was a hundred thousand dollars Which is the total maximum that the court could award under under its procedural rules If there was no such cap, I think the court would have awarded substantially more to the plaintiff the court also awarded the remedy of an injunction to the plaintiff Justice Stinson ordered the defendant to destroy all copies of the video in his possession and control To never again post the video online or share it with others and to not have any contact with the plaintiff or her family Let's have a closer look at this definition of the tort of public disclosure of private facts as It was stated in the Jane Doe and ND case To make sense of this definition Let's break it down into a list of requirements that need to be met in order to prove that someone has committed this tort The first requirement is that the defendant has publicized a matter So that certainly would cover Uploading something onto a onto an internet site that is publicly available The second requirement is that the matter concerns the private life of the plaintiff That certainly covers a You know sexually explicit video or or or picture of someone I guess with the exception of people who are Porn stars where their sexual life is not their private is not private But for most people it would be considered their private life the third requirement is that the matter publicized or the active publication is highly offensive to a reasonable person and Is not of legitimate concern to the public. So where there is that there is that? Exception there in terms of a matter of legitimate concern to the public. So you so that that could Capture a situation where there's some kind of sexually explicit video that is You know put on to the internet and available for everyone to see but let's say the video is about a Famous politician Who's who's running for office that the existence and the content of that video might be of legitimate concern to the public and and therefore The the tort would not apply to that type of situation The remedies that are available for this tort Were applied in the Jane Doe and ND case. They are compensatory damages punitive damages and junction The thing to note about compensatory damages is that the court Did not apply the twenty thousand dollar limit That was set in in Jones and Sigg for the tort of intrusion upon seclusion because in the in the in the Jane Doe and ND case The impact of The tort was analogous to a physical sexual assault was much more serious than what happened in the Jones and Sigg case In this part, we will look at two relatively new intentional torts which deal with breaches of privacy They're called intrusion upon seclusion and public disclosure of private facts This is a list of the torts that we'll cover in this module. We've already looked at battery One thing to keep in mind All of these intentional torts have in common is that they have an intentional act which caused harm so one specific Aspect of that to keep in mind is that the physical act itself has to be intentional There does not need to be an intent to cause harm that the intent to cause harm is not a requirement Only that the act was done intentionally In our modern society, we have ongoing concerns about our privacy Especially when our privacy is breached There there is a ongoing legal question as to whether or not someone can sue For a breach of privacy whether there is a tort for a breach of privacy In 2012 the Ontario Court of Appeal, which is the highest court in Ontario No dealt with that dealt with that issue in the case of Jones and and to Sigg so in that case the facts involve a Sandra Sandra Jones Sandra Jones had sued Winnie Winnie to Sigg Both of them worked at at Bank of Montreal and so so Winnie had surreptitiously Looked at Jones's or Sandra's banking records because Winnie as a part of her job had access to these to these records you know Sandra and Winnie didn't know each other but but Winnie did did know that Sandra was now was now living with with her former husband and So so Winnie was curious about the financial or Sandra's financial situation so so she used her access as an employee to to to look at Sandra's banking records eight at least 174 times over a period of four years So when when Sandra discovered what had gone on obviously she was very upset And and she sued she sued Winnie So Sandra says that her pri privacy interest in her confidential banking information has been Irreversibly destroyed and she claimed damages of $70,000 for invasion of invasion of privacy The legal issue that the court had to deal with here was you know does Ontario law Recognize a cause of action for invasion of privacy or in other words Is there a tort for invasion of of privacy? And you know they they they talked about the fact that you know this issue actually has been debated for the past A hundred and hundred and twenty years has never been never been fully resolved by the courts The the court did Determined that there can be a tort for breach of privacy So what they they they call it a tort of intrusion upon seclusion has a nice ring to it intrusion upon seclusion So they the court set out a number of different requirements for this tort of intrusion upon seclusion The first requirement is that the defendant's conduct must be intentional the second requirement is that the defendant must have invaded with a lawful justification the plaintiff's private affairs or concerns and The third and last requirement is that a reasonable person would regard the invasion as highly offensive causing distress humiliation or anguish So the court applied that legal test to the facts And it came to the the obvious Conclusion that that Winnie-to-sig had committed the tort of intrusion upon upon seclusion They do the three the three elements of the tort happens had been satisfied you know what what Winnie did was was intentional and it amounted to an unlawful invasion of of Jones's private affairs and it is it is viewed as highly offensive to a reasonable person and cause distress humiliation or anguish To sum up based on that Jones and to-sig case of the Ontario Court of Appeal The four requirements for the tort of intrusion upon seclusion are first the defendant intentionally or recklessly second invaded the plaintiff's private affairs without lawful justification Third in a way that a reasonable person would consider highly offensive and fourth that caused Distress humiliation or anguish all four of those requirements need to be met in order to have a tort of intrusion upon seclusion The Court of Appeal also said that in terms of the remedy no actual economic harm needs to have been suffered But can compensatory damages are appropriate But they are capped at a maximum of $20,000 the amount that they actually awarded in the Jones and to-sig case was $10,000 Following the lead of the court in the Jones and to-sig Our next case pushes the frontier even further in terms of the courts using torts to address breaches of privacy in the internet age In 2016 the Ontario Superior Court Recognize a new tort called the tort of public disclosure of private facts as the name of that new tort suggests it covers Situations where private facts about a person including photos and videos Are disseminated via the internet without that person's consent? Most typically it involves the unauthorized uploading of sexually explicit photos or videos The name of the case is Jane Doe 464533 and Nd Please note that those are not the actual or full names of the parties involved in this case The court had banned the publication of any information that would identify the plaintiff in this case in order to protect her privacy The facts in this case involved High school sweethearts in a small Ontario town when they graduated from high school The plaintiff moved away for university The couple officially broke up, but they continued to see each other romantically off and on they kept in touch online via text messages and by telephone By the fall of 2011. They were both 18 years of age The defendant repeatedly asked the plaintiff to send him a sexually explicit video of herself Even though she refused his request he kept asking and pressuring her He even sent intimate pictures of intimate pictures of and videos of himself to her Eventually, she relented with the defendants of promise that no one else would see the sexually explicit video. She had made of herself Within just a day of receiving the video from the plaintiff the defendant had posted the video to an internet pornography website He even showed the video to several of his friends from their hometown The video was available online for about three weeks before it was taken down Once the plaintiff became aware of the online video. She was devastated humiliated and distraught She could not eat or sleep. She could not function at school She cried for most days and had no emotional life And she she said that she felt like a very cold person and felt like everything in my life and all of my beliefs and Morals had been stolen from me She experienced serious depression and emotional upset The defendant has never apologized and he has never shown any remorse Before getting into the legal issues the judge in this case Justice Stinson gave some background by recognizing the problem The internet has created by enabling predators and bullies to victimize others by releasing their nude photos and intimate videos without consent As further background Justice Stinson noted that there is a new criminal offense of publication of an intimate image without consent That criminal offense was enacted in 2014 Which is after the incident in this case which was in 2011 Therefore the defendant in this case was never charged with any criminal offense This this this civil lawsuit was the only remedy available to the plaintiff This case is the first in Canada to impose civil liability under tort for the unauthorized publication of intimate images The legal issues in this case were whether the defendant had committed any one or more of four different torts Which were breach of confidence intentional infliction of mental distress intrusion upon seclusion and the new tort of public disclosure of private facts and If the defendant did commit any one or more of these torts The other issue would be what would be the appropriate remedies in terms of compensatory damages punitive damages and an injunction The court did find that the defendant committed the established torts of breach of confidence intentional infliction of mental distress and intrusion upon seclusion But what makes this case interesting is the new tort of public Public disclosure of private facts. So that is so that is the only part of the judgment that we will focus on the court Set out the requirements for a tort of public disclosure of private facts so which is 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 the publication a Would be highly offensive to a reasonable person and B It is not of legitimate concern to the public. So that is the applicable law definition of the tort In applying that definition to this case The court said that the defendant posted on the internet a privately shared and highly personal intimate video recording of the plaintiff and that in doing so he made public an Aspect of the plaintiff's private life The court further found that a reasonable person would find such activity involving unauthorized public disclosure of such a video to be highly offensive and That it is readily apparent that there was no legitimate public concern in him doing so Therefore the court concluded that the defendant did commit the tort of public disclosure of private facts The court then moved on to look at the appropriate remedies that that it should give to the plaintiff in Determining the appropriate compensatory damages the court said that what the plaintiff suffered in this case was analogous to a physical sexual assault The court gave her gentle damages of fifty thousand dollars Which is much more than the ten thousand dollar award in in the jones and to sig case Because of that of the devastating impact on the plaintiff, which was akin to a sexual assault and the court also awarded awarded the plaintiff aggravated damages of twenty five thousand dollars because the posting of the video by the defendant Mounted to a breach of trust and that the defendant had promised to the plaintiff that he would not show the video to anyone else The court also awarded punitive damages to the plaintiff the court stated the applicable law Which is that an award for punitive damages may be appropriate or the defendant has acted in a high-handed or arrogant fashion Or has recklessly disregard disregarded the plaintiff's rights or the potential impact of the defendant's intentional conduct The defendant's conduct in this case fits that definition Because he gave no consideration to the impact of his actions on the plaintiff He has not apologized and he has shown no remorse Accordingly the court awarded punitive damages of twenty five thousand dollars The total amount of damages awarded was a hundred thousand dollars Which is the total maximum that the court could award Under under its procedural rules If there was no such cap, I think the court would have awarded substantially more to the plaintiff The court also awarded the remedy of an injunction to the plaintiff Justice stinson ordered the defendant to destroy all copies of the video in his possession and control To never again post the video online Or share it with others and to not have any contact with the plaintiff or her family Let's have a closer look at this definition of the tort of public disclosure of private facts As it was stated in the jane doe and nd case To make sense of this definition Let's break it down into a list of requirements that need to be met in order to prove that someone has committed this tort The first requirement is that the defendant has publicized a matter So that certainly would cover Uploading something onto a onto an internet site that is publicly available The second requirement is that the matter concerns the private life of the plaintiff That certainly covers a You know sexually explicit video Or or or picture of someone I guess with the exception of people who are porn stars where their sexual life is not their private is not private But for most people it would be considered their private life The third requirement is that the matter publicized or The act of publication is highly offensive to a reasonable person And is not of legitimate concern to the public So where there is that there is that Exception there in terms of a matter of legitimate concern to the public so So that that could capture a situation where there's some kind of sexually explicit video that is You know put onto the internet and available for everyone to see But let's say the video is about a A famous politician Uh, who's who's running for office that The existence and the content of that video might be of legitimate concern to the public And and therefore The the tort would not apply to that type of situation The remedies that are available for this tort Uh were applied in the Jane Doe and ND case. They are compensatory damages punitive damages and junction The thing to note about compensatory damages is that the court Did not apply the $20,000 limit That was set in in in jones and sig for the tort of intrusion upon seclusion because in the in the In the Jane Doe and ND case Uh The impact Of the tort was analogous to a physical sexual assault. So it was much more serious than what happened in the jones and sig case The tort of misappropriation of personality is where one person seeks some kind of advantage By using another person's name or image without that other person's consent So a a great example of this is uh involved michael jordan When michael jordan was about to be inducted into the basketball hall of fame The the magazine sports illustrated ran a special edition And and companies bought ads in that special edition. There were a couple of companies that were Uh, Chicago area grocery stores That put in ads. Now. This is one ad here, uh from dominix finer foods It indicates a congratulations michael jordan number 23 You are a cut above and then below that is a two dollar coupon for uh for a stake So michael jordan sued dominix dominix finer foods and the other grocery store that ran an ad the similar ad as well And and and it was a it was a an american case, of course, but the tort involved was the misappropriation of personality And the the the court ruled in favor of michael jordan and awarded him Uh damages of 8.9 million dollars for that tort of misappropriation of personality