Civil Litigation

Punitive damages awarded in revenge porn case

By Kirsten McMahon, Managing Editor

A recent civil case where the court awarded $100,000 in general, aggravated and punitive damages to a victim of “revenge porn” is a significant advancement of the common law, Toronto civil sexual abuse lawyer Elizabeth Grace tells AdvocateDaily.com.

The Ontario Superior Court of Justice matter involved the plaintiff who was seeking a default judgment against her former boyfriend for damages arising from his abusive behaviour towards her and his posting — without her knowledge and consent — of a sexually explicit video of her on a pornographic internet website.

“This case involved physical assault against an intimate partner,” says Grace, partner with Lerners LLP. In addition, “the plaintiff’s ex-boyfriend and father of her child posted a sexually explicit video on a pornographic website. Her face was visible in the video while his was not, and he allegedly did it as payback because she reported his violence to the police.”

“While she consented at the time to the video being made, she did not consent to its public disclosure to others. By the time she learned about the video being posted online, at least two years had passed, and it was viewed more than 60,000 times, linked to 10 different websites and downloaded who knows many times,” Grace says.

“This was devastating to her, and she was haunted by the fear that others would see it, including her child,” she adds.

While Manitoba has the Intimate Image Protection Act and Saskatchewan, Alberta and Newfoundland have tabled revenge porn laws, there is no similar statute in Ontario, Grace says.

“What the court has done is use judge-made law to provide a remedy for acts of online harassment including revenge porn through the creation of the tort of public disclosure of private facts without consent,” she notes.

In her judgment, Justice Sally Gomery wrote: “A strength of the common law is its ability to evolve and adapt to changing circumstances.”

Her decision noted that the tort of public disclosure of private facts has existed in U.S. law for decades.

“Despite its vintage, it is well-suited for use in the context of internet posting and distribution of intimate and sexually explicit images and recordings. It is the cousin to another privacy tort already recognized in Ontario, intrusion on seclusion,” Gomery wrote. “As such, it is an appropriate, proportionate legal response to a growing problem enabled by new technology.”

Grace, who was not involved in the matter and comments generally, says another interesting aspect of the case was that the plaintiff received a separate award of damages for the breach of privacy she suffered.

“This case was against an individual, not an institution — so it's significant. We're not dealing with someone who is wealthy, yet the court awarded $75,000 for general and aggravated damages, plus $25,000 as punitive damages.” These amounts were, Grace stresses, “on top of the $20,000 awarded in general damages for the physical and verbal assaults the plaintiff had endured."

The role of “punishing” people is often left to the criminal courts, Grace notes.

“In the sexual abuse area, civil courts will sometimes award punitive damages. In this case, the defendant had already been criminally convicted for his physical assaults, which is usually a reason why a civil court won't award punitive damages,” Grace says. “But here, the court saw fit to award punitive damages for a wrong that had gone unpunished by the criminal court — the defendant’s revenge porn.”

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