A New Tort is Born in Yenovkian v Gulian, 2019 ONSC 7279: Publicity Placing a Person in a False Light
First and foremost – what is a tort? In Canadian Tort Law in a Nutshell, Margaret Kerr, JoAnn Kurtz and Laurence M Olivo provide a helpful definition:
The word tort comes from medieval French and means a wrongful act, an injury. A tort is a civil (rather than criminal) wrong done by one person to another person’s body, property, or reputation. The law can require the person who committed the wrong to compensate the injured person. The person who committed the wrong is sometimes called a tortfeasor, another medieval French word, meaning wrongdoer.
Margaret Kerr, JoAnn Kurtz & Laurence M Olivo, Canadian Tort Law in a Nutshell, 5th ed (Toronto: Thomson Reuters Canada Ltd, 2019) at p 1
Some recognized examples of torts include negligence, trespass, battery, false imprisonment, or defamation.
The law evolves slowly so it is not often that the legal community witnesses the birth of a new tort, but recently one was recognized by the Ontario Superior Court of Justice in Yenovkian v Gulian, 2019 ONSC 7279.
Yenovkian v Gulian involved a family law dispute between a former husband and wife who had two children. The Court found that the father had engaged in years of cyberbullying the mother and children. Despite the Court previously ordering him to stop making these types of posts, the father continued with his cyberbullying tactics. In this decision, the Court addressed the best interests of the two children, the invasion of their privacy, and the effects of the cyberbullying.
The Court described the father’s online activities, which involved, in part, a website with embedded links to videos involving the children, the mother, and the mother’s family. The videos, postings, and website were admitted as evidence of the allegations the father made against his former partner and his children. The material posted including photographs and videos the children, personal identifying information, disparaging comments about the children, and recordings of his parenting time with the children. The children were unaware they were being recorded.
The father also posted images of the mother and her parents with written and oral commentary accusing them of various illegal acts including child abuse and various “felonies” against the UK, US and Canadian governments. The Court found that these allegations were false.
The father had several online supporters who signed his online petitions. He made several unsubstantiated accusations against the mother and her family to various authorities in the United States, the United Kingdom, and Canada. The father shared his statements and websites with the mother’s family and friends, including her business and church associates. He invited the public, through the internet, to join him in cyberbullying.
The Court analyzed several family law issues, not relevant to this blog post, but also considered whether the mother was entitled to damages for nuisance, harassment, intentional infliction of mental suffering, and invasion of privacy.The Court recognized that children require special safeguards and legal protection and that “the heightened vulnerability of children is a concern when a parent uses public internet postings in a way that intrudes on the privacy of children.” The Court found that the father’s online activity was “an intrusion on the privacy of these children and should reasonably be known to cause these children intimidation, humiliation, distress and harm to their feelings, self-esteem and reputation."
The Court found that the mother’s claim for damages for intentional infliction of mental suffering was made out because the mother’s claim met the following tripartite test:
a) flagrant or outrageous conduct;
b) calculated to produce harm; and
c) resulting in a visible and provable illness.
The Court next considered whether the mother was entitled to damages for the invasion upon her privacy. Justice Kristjanson cited the seminal case, Jones v Tsige, 2012 ONCA 32, in which the Ontario Court accepted the tort of “intrusion upon seclusion” for the first time. In Jones v Tsige, the Ontario Court of Appeal cited an American legal scholar, William Prosser, who wrote about a
four-tort catalogue of privacy-related torts including the following:
1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs.
2. Public disclosure of embarrassing private facts about the plaintiff.
3. Publicity which places the plaintiff in a false light in the public eye.
4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness.
Up until Yenovkian v Gulian, Canadian courts had recognized three out of the four privacy-related torts. In Jones v Tsige, the Court acknowledged the torts of intrusion upon seclusion and appropriation of the plaintiff’s name of likeliness. Between 2016 and 2018, Ontario courts also recognized the tort of public disclosure of embarrassing or private facts about the plaintiff in cases involving the publication of intimate photos on internet pornography sites. The elements of this tort include:
(a) the defendant publicized an aspect of the plaintiff's private life;
(b) the plaintiff did not consent to the publication;
(c) the matter publicized or its publication would be highly offensive to a reasonable person; and
(d) the publication was not of legitimate concern to the public.
When Yenovkian v Gulian was decided, only the third privacy-related tort, publicity which places the plaintiff in a false light in the public eye, had yet to be adopted into Canadian law. The Court decided it was time to recognize this cause of action and adopted the following test:
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.
The Court also clarified that while the publicity will often be defamatory, defamation is not a required element of the tort. It will be sufficient if the plaintiff can show “that a reasonable person would find it highly offensive to be publicly misrepresented as they have been. The wrong is publicly representing someone, not as worse than they are, but as other than they are. This tort places value in a person’s privacy right to control how they are presented to others in the world. This is not a trivial thing in an Internet-driven world where people curate their image on social media every day.
Justice Kristjanson also provides a helpful distinction between Privacy Tort #2 (public disclosure of embarrassing private facts about the plaintiff) and Privacy Tort #3 (publicity which places the plaintiff in a false light in the public eye). She explains:
They share the common elements of 1) publicity, which is 2) highly offensive to a reasonable person. The principal difference between the two is that public disclosure of private facts involves true statements, while "false light" publicity involves false or misleading claims. (Two further elements also distinguish the two causes of action: "false light" invasion of privacy requires that the defendant know or be reckless to the falsity of the information, while public disclosure of private facts involves a requirement that there be no legitimate public concern justifying the disclosure.)
Furthermore, the Court explained that it was important to recognize this new tort, because it would be “absurd if a defendant could escape liability for invasion of privacy simply because the statements they made about another were false.”
The Court then proceeded to apply the new tort to the case at bar.
- The Court found that the father’s serious, unfounded online allegations against the mother and her family, including allegations of child abuse and fraud against the government, would be highly offensive to a reasonable person.
- The Court further found that as a direct result of the father’s conduct, the mother suffered a visible and provable illness. She sought medical assistance for nightmares, feeling ill, disturbed sleep and mental stress.
- The Court also found that the father actively sought an audience for a website that portrayed the mother as criminally abusive of the children. At the very least, he was reckless of the false light in which his campaign would cast her.
The Court found that the father was therefore liable to the mother for the tort of publicity which places the plaintiff in a false light in the public eye. The Court further found that to the extent the father included true statements in his online postings, the father was also liable for the tort of public disclosure of private facts.
The Court adopted the following factors from defamation case law in arriving at an award of damages:
a) the nature of the false publicity and the circumstances in which it was made,
b) the nature and position of the victim of the false publicity,
c) the possible effects of the false publicity statement upon the life of the plaintiff, and
d) the actions and motivations of the defendant.
In this case, the false publicity was egregious, widely disseminated on the internet and targeted to the mother’s known associates. The mother suffered damage as a mother, as an employee, in her cultural community, and in her church community. The false publicity had a detrimental effect on the mother’s health and welfare, caused her fear and humiliation, and could be expected to affect her social standing. The father did not apologize, nor did he retract his outrageous comments, despite being ordered to do so by the Court. The mother was awarded $50,000 for intentional infliction of mental suffering, $100,000 for the invasion of privacy (false light and public disclosure of private facts combined), and $150,000 in punitive damages to express the Court’s denunciation, deterrence and punishment.
This new tort has not yet been applied by the Alberta courts and it remains to be seen how the test from Yenovkian v Gulian will be applied to other fact scenarios. However, the Court’s willingness to recognize this new tort in Yenovkian v Gulian indicates an understanding that the world is changing. Anyone can have access to a wide audience using the internet and anyone has the power to post content which could cast an individual in a false light. A person’s online image and reputation is becoming increasingly important in the digital world, and in Yenovkian v Gulian the Court has recognized the right to protect that asset.