In ES v Shillington, 2021 ABQB 739, the plaintiff asked the Alberta Court of Queen’s Bench to recognize the tortious act of “Public Disclosure of Private Facts”. The plaintiff had shared photographs with the defendant in which she was in various states of undress and engaging in sexual activity, which were shared with the defendant, her partner at the time, as a private gift to him. The defendant confessed, near the end of their relationship, that he had posted her images online.
Justice Inglis considered the three clear rules for a court to recognize a new tort, pursuant to Nevsun Resources Ltd. v. Araya, 2020 SCC 5: (1) whether there was an adequate alternative; (2) whether the new tort reflects and addresses a wrong visited by one person upon another; and (3) whether the change wrought upon the legal system would be indeterminate or substantial (para 24).
Justice Inglis found that the tort of intentional infliction of mental distress was inadequate as it was designed to address different situations (para 38) and it requires the defendant to have subjective intention to cause harm (para 47). The tort of breach of confidence also does not offer a remedy as requiring the victim to prove that they shared their image was both confidential and communicated in confidence creates an unnecessary barrier to a remedy (para 44). There was no fulsome alternative remedies for this plaintiff to the proposed tort (para 50).
Privacy is recognized as a fundamental value in Canadian law and specifically identifies, as worth of protection, a right to informational privacy which is distinct from persona and territorial privacy (para 53).
The conduct complained of by the plaintiff is appropriate for judicial adjudication (para 62).
To establish liability for the tort of Public Disclosure of Private Facts, the Plaintiff must prove that:
Justice Inglis awarded the Plaintiff $80,000 in general damages (para 97). Her pain and suffering were significant. The nature of the embarrassment was high, and the number of images published which were still available publicly contributed to the award (para 97). Justice Inglis also found that the Defendant was liable for $50,000 in punitive damages, as the defendant was motivated by actual malice (paras 99-101). Justice Inglis also awarded $25,000 in aggravated damages based on the nature of the relationship between the parties (para 102).