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A recent Ontario decision has invoked a little-known privacy law tort for the first time to award damages to a mother involved in a high-conflict divorce with her former spouse. Ultimately, the mother was awarded a total of $300,000, a serious condemnation of the father’s activities by the court.

High-Conflict Divorce & Social Media Posts

Just a few weeks ago, we blogged about considerations parties need to keep in mind when posting to social media through a family law dispute. This case is an excellent example of how seriously the courts take negative online behaviour, particularly when it affects minor children.

In the case at hand, the parties were married and had two children together. The father requested a divorce and a month later, the mother moved with the children to the UK out of fear for her safety. Soon, the father began a public campaign to smear the mother, which consisted of him posting videos to YouTube in which he provided personal commentary on the ongoing disputes with his former spouse. As part of these postings, he had included photos and videos depicting private family moments with his children and engaged in online bullying of them as well. One child has a neurological disorder, and in some videos the father could be seen mocking her, saying she seemed ‘drugged’ and ‘not normal’.

He had also publicly accused his former wife of a host of crimes, including kidnapping, drugging the children, theft, fraud and child abuse. He also sent emails and posted flyers directing people to his videos to increase the audience.

The mother brought an action seeking various orders including child support, spousal support, invasion of privacy, intentional infliction of mental suffering, and more.

Citing a four-tort invasion of privacy catalogue introduced by American scholar William L. Prosser and later adopted by the American Law Society in 2010, the judge considered the following four civil invasion of privacy claims:

1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.

2. Public disclosure of embarrassing private facts about the plaintiff.

3. Publicity which places the plaintiff in a false light in the public eye.

4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.

The ONCA first recognized the first in the list, intrusion upon seclusion, in a 2012 decision. This case also recognized that the fourth tort on the list, the appropriation of a plaintiff’s name or likeness, was already an actionable claim in Ontario.

The second tort on the list, the public disclosure of private facts, was also adopted in Ontario civil law via two decisions in 2016 and 2018, respectively.

The court in the case at hand then reviewed the elements of the American tort of ‘Publicity placing a person in a false light”, which are stated as follows in the Restatement (Second) of Torts (2010):

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if

(a) the false light in which the other was placed would be highly offensive to a reasonable person, and

(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

The court adopted this definition of the tort and further clarified that while claims falling with the tort would be likely to be defamatory, defamation is not a required element. It would be sufficient that the public misrepresentation would be highly offensive to a reasonable person.

Tort Could Have Broad Implications

This finding could have much broader implications than just family law disputes. This tort could affect businesses and individuals going forward for characterizations posted publicly that could be said to misrepresent an individual. Further, the court in this case noted that while there is a $20,000 cap on awards for intrusion upon seclusion, the same could not be said for this new action, leaving the landscape open to large awards for misrepresenting a person on a public scale.

At Baker & Company, our Toronto family law lawyers are highly experienced in high-conflict divorce matters and support litigation. We are committed to making the process of legally addressing a family matter as clear and approachable as possible. Call us at 416-777-0100 or contact us online for a consultation.

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