In an age of social media, “revenge porn” has become an unsavoury reality, and a sinister way in which exes will sometimes try and seek vengeance following a break-up. While the criminal code was amended in 2014 to make “publication of an intimate image without consent” an indictable offense with a penalty of up to five years in prison, there have been surprisingly few decisions addressing revenge porn in civil court.

One such civil decision has been ongoing since 2011, was heard by three judges, and will likely continue going forward. Most recently, the Ontario Superior Court of Justice confirmed that the dispute should be heard again from the beginning to permit the ex-boyfriend to fully participate in the proceedings.

The Original Decision

In 2016, the Ontario Superior Court heard a case in which a woman sued her ex-boyfriend after he posted an intimate image of her on a pornography website without her knowledge or consent. She claimed breach of confidence, intentional infliction of mental distress, and invasion of privacy.

The ex-boyfriend failed to respond to her statement of claim and was noted in default. The woman subsequently sought compensatory and punitive damages and a permanent injunction to prevent the ex-boyfriend from posting any other images of her going forward.

The facts in the matter were quite straightforward. The woman had, after much goading on the part of the ex-boyfriend and after he sent her intimate images of himself and told her she “owed him” a video in return, sent him an intimate video of her pleasuring herself.

The day he received the video, the ex-boyfriend posted it to a public pornography website and showed the video to a number of the former couple’s mutual friends. The video was available online for approximately three weeks before it was removed.

The results on the woman were “devastating”. She was humiliated and distraught to discover what had happened. Among other things, she had to defer her Christmas exams, could not sleep, barely ate, did not shower, attended a crisis intervention centre at a hospital, suffered panic attacks, and saw a counsellor for over a year and a half to deal with the fallout from the video being posted.

Justice Stinson ended up finding in favour of the woman, noting that:

there are both established and developing legal grounds that support the proposition that the courts can and should provide civil recourse for individuals who suffer harm arising from this misconduct and should intervene to prevent its repetition.

She was awarded $100,000, consisting of $50,000 for general damages, $25,000 for aggravated damages, and $25,000 in punitive damages intended to reflect the ex-boyfriend’s “reckless” and “arrogant” disregard of her rights, and the fact that he had failed to apologize or show remorse for his actions.

She was additionally granted an order prohibiting the ex-boyfriend from communicating, directly or indirectly, with her or members of her family.

Justice Stinson also issued a mandatory injunction ordering the ex-boyfriend to destroy any and all intimate images or recordings that he had of the woman.

Another “Kick at the Can”

Justice Stinson’s original order was subsequently struck down by Justice Dow, a second judge, who thought that the ex-boyfriend should have a chance to participate in the proceedings and file a defense, as the “overall interest of justice” favoured that conclusion.

The woman subsequently sought permission to appeal Justice Dow’s ruling, arguing that while Justice Dow had been critical of the ex-boyfriend’s “inappropriate” actions in essentially ignoring her statement of claim, he ultimately set aside the finding of liability.

On appeal, the woman’s legal counsel argued that:

[Justice Dow’s] failure to consider the binding case law concerning conscious failures to defend encourages defendants to “take a risk” and not defend.   This sends the message that the courts will permit defendants to flagrantly disregard the Rules of Civil Procedure, and allow them a “second kick at the can”, without regard to the considerable psychological harm and prejudice to the plaintiff that will result.   This will discourage victims of the non-consensual release of intimate videos from moving forward with litigation, and encourage defendants not to take such claims seriously.

Justice Kitely, ultimately found no legal error in Justice Dow’s reasoning, finding that:

….it is a matter of general importance that the facts in this case be the subject of a hearing on its merits so that the significant legal conclusions deriving therefrom will have more weight in future cases as opposed to findings made as a result of a hearing where only one side participated, albeit through the fault of the other side.   The uniqueness of the case and the prospect for a decision on the merits making a contribution to the development of torts in an important area of the law is a compelling reason to conclude that it is a question of general importance that the defendant have the opportunity to participate in a trial.

What Now?

Despite the fact that this case has essentially reverted back to the beginning, and will be heard all over again, Justice Stinson’s original trial decision remains note-worthy, not only because of the recognition that the tort of invasion of privacy applies to instances of revenge porn, but also due to the significant damages awarded. Justice Stinson’s reasoning arguably remains persuasive, as the reason the case is being given a “second kick at the can” is solely technical (i.e.- to permit the ex-boyfriend to file a defense).

We will continue to follow developments in this matter and will blog about updates as they become available.

In the meantime, if you have questions about a vindictive ex, or want to understand your legal rights following the end of a relationship, contact Windsor family lawyer, Jason P. Howie online or at 519.973.1500.