What Can Happen Legally If a Person Spreads Around Personal Facts About Another Person?

When a Person Discloses Personal Information About Another Person Such Conduct May Be Tortious and Lead to Liability Against the Wrongfully Acting Person.

Understanding Liability Arising From Disclosure of Personal Information As a Form of Breach of Privacy

People Gossiping About Another Person Tort law principles regarding breach of privacy are relatively new and continue to evolve. Included within various forms of breach of privacy is the tort of disclosure of private details or personal information.  Unlike defamation law, which involves spreading of false information, disclosure of private personal information involves spreading of true information.

The Law

The laws that protect privacy include statutes such as the Personal Information Protection and Electronic Documents Act, S.C. 2000, Chapter 5 and the Personal Health Information Protection Act, 2004, S.O. 2004, Chapter 3, Schedule A, among others.  Privacy is also protected via tort law from prior cases such as Halley v. McCann, 2016 CanLII 58945 which dealt with embarrassing disclosure of private personal information.  In Halley, while addressing tort law privacy rights protecting against disclosure of private personal information, the court stated:

15. Ontario courts have only recently recognized common law causes of action for invasion of privacy. First in Jones v. Tsige 2012 ONCA 32, Mr. Justice Sharpe of the Ontario Court of Appeal created the tort of intrusion on seclusion, derived from the U.S. Restatement (Second) of Torts (2010). It imposes liability on someone: “who intentionally intrudes physically or otherwise upon the seclusion of another or his private affairs or concerns.” (para 70). This cause of action is named in the pleadings. The elements of the cause of action are:

… first, that the defendant's conduct must be intentional, … [which includes] reckless; second, that the defendant must have invaded, without lawful justification, the plaintiff's private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. (para 71)

16. Importantly, causation of actual harm is not an element of the tort – the intangible nature of privacy makes damages more nuanced. Justice Sharpe reinforces this point again in Hopkins v. Kay 2015 ONCA 112 at paras 49-50. Non pecuniary damages for humiliation are expressly contemplated although acknowledged to be modest. Justice Sharpe elaborates on the quantification of damages at paragraphs 87 and 88 of Jones:

In my view, damages for intrusion upon seclusion in cases where the plaintiff has suffered no pecuniary loss should be modest but sufficient to mark the wrong that has been done. I would fix the range at up to $20,000. The factors identified in the Manitoba Privacy Act, which, for convenience, I summarize again here, have also emerged from the decided cases and provide a useful guide to assist in determining where in the range the case falls:

(1) the nature, incidence and occasion of the defendant's wrongful act;

(2) the effect of the wrong on the plaintiff's health, welfare, social, business or financial position;

(3) any relationship, whether domestic or otherwise, between the parties;

(4) any distress, annoyance or embarrassment suffered by the plaintiff arising from the wrong; and

(5) the conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the defendant.

[88] I would neither exclude nor encourage awards of aggravated and punitive damages. I would not exclude such awards as there are bound to be exceptional cases calling for exceptional remedies. However, I would not encourage such awards as, in my view, predictability and consistency are paramount values in an area where symbolic or moral damages are awarded and absent truly exceptional circumstances, plaintiffs should be held to the range I have identified.

17. After the issue of pleadings, a second invasion of privacy tort was recognized in Ontario: public disclosure of embarrassing private facts about the plaintiff as defined in Jane Doe 464533 v. N.D. 2016 ONSC 541, [2016] O.J. No. 382 and again substantially drawn from the U.S. Restatement (Second) of Torts (2010). It occurs when someone “gives publicity to a matter concerning the private life of another… [and] the matter publicized or the act of the publication (a) would be highly offensive to a reasonable person and (b) is not of legitimate concern to the public.” (para 46)

18. Again, no actual harm is required to be proven and so quantification of damages remains a challenge. In Jane Doe, Justice Stinson of the Ontario Superior Court considers the earlier guidance offered by Justice Sharpe, but awards damages far in excess of the $20,000 cap set in Jones and across a broader range of categories. Both aggravated and punitive damages were considered appropriate in the circumstances (para 59-61):

This is a case where an award of aggravated damages is warranted, too. Such damages may be awarded where the damage to the plaintiff was aggravated by the manner in which the culpable act was committed. Here, the posting of the video amounted to a breach of the trust reposed by the plaintiff in the defendant that he would not reveal it to anyone else. This feature of the defendant’s behaviour was an affront to their relationship that made the impact of his actions even more hurtful and painful for the plaintiff. I would award $25,000 on this account.

[60] The plaintiff also seeks punitive damages. Such an award may be appropriate where 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. Those are apt descriptions of the defendant’s conduct here. He gave no consideration to the inevitable impact of his actions on the plaintiff. He has not apologized; indeed, according to the plaintiff, despite being aware of the harm he has caused, when they have encountered one another since the event, he has had an insolent look on his face, and has shown no remorse. No apology has been forthcoming. In my view, this is a case where an award of punitive damages is warranted.

In relation to quantum, proportionality is an important consideration in making an award of punitive damages. Other factors include the blameworthiness of the defendant's conduct (high); the degree of vulnerability of the plaintiff (significant); the harm directed specifically at the plaintiff (again, significant). Importantly, I have found that the defendant acted with malice.

19. In sum, there are two recognized invasion of privacy torts in Ontario; neither requires proof of pecuniary loss or harm to an economic interest. Aggravated and punitive damages may be awarded and an award should serve as a deterrent to others.

As per Halley above, the embarrassing disclosure of private personal information that would be viewed as highly offensive to a reasonable person constitutes as a tortious wrongdoing. Interestingly, as also explained in Halley, where a person seeks statutorily available compensation following a privacy breach, a person may still pursue tort law compensation.

Summary Comment

When a person discloses embarrassing private personal information about another person, and does so in a manner that would be deemed highly offensive to a reasonable person, such conduct may constitute as a form of breach of privacy and give rise to liability imposed against the wrongdoing person.

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