Alberta Recognizes Tort for Non Consensual Sexual Image Sharing

In what I believe is the first case in Alberta recognizing the tort of “Public Disclosure of Private Facts” a Court adopted this tort and awarded significant damages following the non-consensual publication of private sexual images.

In the recent case (ES v. Shillingham) the parties were involved in an intimate relationship.  Of the course of the relationship the Plaintiff shared sexual images with the Defendant “as a private gift to him.” and on the understanding that “he would not distribute these images in any way.“.  Despite this he chose to share these images on the internet over the years.

In recognizing a new tort and assessing damages to address this wrongdoing Justice Avril Inglis provided the following reasons:

[68]           Therefore, in Alberta, 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.

[69]           All three cases – Jones, Jane Doe #1, and Jane Doe #2 – recognize the privacy interests inherent in financial and sexual matters. Relationships and health records also fit into the category of “private life” matters. If publicized information does not match one of these groups, the test from Campbell (at paras 94-96) is an appropriate starting point to determine the issue of whether or not the information in question is private arises: “What would a reasonable person feel if they were place in the same position as the claimant faced with the same publicity?”: at para 99.

[72]           In the matter before this court, the application of the tortious principles is equally straightforward. 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.

The court went on to grant injunctive relief and further assessed substantial damages including general, aggravated and punitive damages.

Invasion of Privacy, privacy, Public Disclosure of Private Facts

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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