New Privacy Tort in Alberta: Public Disclosure of Private Facts
Summary and Background
On September 16, 2021, Prowse Chowne was successful in having a new tortious cause of action recognized in Alberta. Justice A.B. Inglis of The Court of Queen’s Bench of Alberta issued her decision in ES v Shillington, 2021 ABQB 739 (Shillington), finding the Defendant liable for public disclosure of intimate images of the Plaintiff.
The Plaintiff was in an intimate relationship for over a decade with the Defendant, Thomas Shillington, who the court found physically and sexually abused her. The relationship ended with the Plaintiff seeking help at a shelter for women at risk.
During the relationship. The Plaintiff shared various intimate photographs with Shillington, with an understanding that they would remain private. Near the end of the relationship, Shillington admitted to posting some of these intimate images online. The Plaintiff could still find copies of the images circulating in early 2021.
Public Disclosure of Private Facts
Following guidance from the Supreme Court of Canada, and having determined that a new protection of privacy was necessary, the court established the factors for the new Alberta tort:
…to establish liability for the tort of Public Disclosure of Private Facts, the plaintiff must prove that:
(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 in the position of the plaintiff; and,
(d) The publication was not of legitimate concern to the public.
Having established the test, the court succinctly analysed Shillington’s conduct:
By uploading the Plaintiff’s explicitly sexual images to accessible websites the Defendant publicized an aspect of her private life; the Plaintiff did not consent to this action; the publication of the images is highly offensive to a reasonable person in the position of the Plaintiff; and, there is no legitimate concern to the public that warranted the publication.
Shillington was found liable for the new tort and was ordered to make best efforts to return all images of the Plaintiff in his possession and to make best efforts to remove any images of the Plaintiff that he posted wherever the images are found. He is also prohibited from sharing private images of the Plaintiff in the future.
Combined damages were awarded for liability for three torts, Public Disclosure of Private Facts, Breach of Confidence, and Intentional Infliction of mental distress. The court awarded $80,000 in general damages, $50,000 in punitive damages, and $25,000 for aggravated damages. Further damages were awarded separately for Assault, Battery, and Sexual Assault.