The courts in Alberta, and in provinces across Canada have acknowledged and built upon the civil tort for a breach of privacy which can be found to occur when a person publicly exposes another person’s private images and videos. The most common cases of this is when a former partner/spouse uses privately held images and/or videos of their former partner/spouse that they were given. Where tort cases have found fault hinges on possession and use of these images and/or videos, as the expectation that is built into privacy rights in these cases, is built upon the foundation that these images and/or videos were not to be made public.
The case of LDS v. SCA, 2021 ABQB 818, addressed this very issue when a Defendant had been found on a civil standard of proof to have exposed the Plaintiff’s private images that she had voluntarily provided to him, which then the Defendant was found to have hacked into the Plaintiff’s Facebook, posted the pictures, and hacked into the Plaintiff’s email, and posited pictures on a public Tumblr page.
As a result of these actions, the Plaintiff claimed: 1. a breach of the intentional torts of breach of confidence, 2. invasion of privacy and 3. infliction of mental distress against the Defendant. The process of obtaining a judgment for in this case was not an easy process, and required detailed presentation of facts to prove that the Defendant had undertaken these acts.
In LDS v. SCA, the evidence that formed the basis for proving these claims did not come in the form of direct evidence, rather it was circumstantial evidence which was relied upon for the court’s finding. This is critically important for victims of this type of privacy invasion as the perpetrator is unlikely to readily admit to doing this.
Once facts have been presented sufficiently to prove that a Defendant was responsible for this conduct on a balance of probabilities (the civil standard in these cases), the court undertook analysis that detailed that providing pictures/videos privately then on a public platform without the permission of the Plaintiff in these photos had resulted in embarrassment and humiliation. The level of analysis for this finding has been accepted on the basis of the person’s statement that this is how they were in fact affected by this breach of their privacy. Evidence that can show how the person has been affected by this breach in their engagement with others, such as family members being made aware of this privacy violation, or how the person has been affected in their work life, or employment opportunities is of important evidentiary value.
The degree that images and/or videos are accessed is difficult to determine in many cases when they are publicly posted, though not impossible depending on the platform that they were posted to. In the case of LDS v. SCA, the degree of exposure was not factored into the decision for awarding damages to the Plaintiff.
Damages in LDS v. SCA were a combination of general damages, aggravated damages and punitive damages for a total of $130,000, in addition to there being implications for pre-judgment interest and costs being awarded against the Defendant. The category of aggravated and punitive damages is interesting in cases such as this, as they address the malice of the person, the intent and motive to cause damage to the person, and clear knowledge that this public posting was known to be wrong.
If you are in need to seek recourse against a person who has used private images and/or videos and distributed these in violation of your expected confidence and privacy, kindly contact one of the trusted litigation advocates at Family Central Law Office LLP. Please contact us today for a free consultation with our family lawyers by calling our office at 587-392-7970 or emailing info@familycentrallaw.com, or by clicking on our consultation page
