Alberta Court Recognizes the “Public Disclosure of Private Facts” Privacy Tort

On September 16, 2021, the Court of Queen’s Bench of Alberta (the Court) issued its decision in ES v Shillington, 2021 ABQB 739 (Shillington), recognizing, in Alberta, the tort of Public Disclosure of Private Facts. 

In Shillington, the Plaintiff asked the Court to recognize the tort of Public Disclosure of Private Facts as a separate cause of action in Alberta.  The Plaintiff was in a long-term abusive relationship with Mr. Shillington, and near the end of their relationship, Mr. Shillington admitted to posting, without the Plaintiff’s consent, private, explicit images of the Plaintiff (which he received during their relationship) on the internet. Some of these images were still available online, and the Plaintiff was identifiable in some of them. 

To determine whether to recognize the Public Disclosure of Private Facts as a new tort in Alberta, the Court relied on the three required elements established by the Supreme Court of Canada in Nevsun Resources Ltd v Araya, 2020 SCC 5 (Nevsun). These elements are: (1) the courts will not recognize a new tort where there are adequate alternative remedies; (2) the courts will not recognize a new tort that does not reflect and address a wrong visited by one person upon another; and (3) the courts will not recognize a new tort where the change wrought upon the legal system would be indeterminate or substantial.

In concluding that the elements set out in Nevsun were met, the Court, among other things, found that:

1. Alberta’s Protecting Victims of Non-Consensual Distribution of Intimate Images Act, SA 2017, c P-26.9, (a) was not in force at the time of Mr. Shillington ’s actions or the discovery of such actions; (b) only protects distribution of “intimate images”, which is narrowly defined; and (c) did not protect privately sharing intimate images;
2. other existing torts did not provide an adequate remedy for the harm caused by Mr. Shillington;
3. Mr. Shillington’s actions were “of deliberate wrongdoing with significant foreseeable harm as a consequence”; and
4. “the increased use of new technologies has created rapid societal change that has created new possibilities for privacy breaches that require adequate legal protection.”

To establish liability for the tort of Public Disclosure of Private Facts, the Court determined that the Plaintiff must prove that: (1) the defendant publicized an aspect of the plaintiff’s private life; (2) the plaintiff did not consent to the publication; (3) the matter publicized or its publication would be highly offensive to a reasonable person in the position of the plaintiff; and (4) the publication was not of legitimate concern to the public. 

The Court found that the Plaintiff proved the requirements to establish liability, and ordered Mr. Shillington to: (1) return all images of the Plaintiff in his possession; and (2) “remove any images of the Plaintiff that he posted wherever the images are found.” Also, the Court prohibited Mr. Shillington from publicly sharing any private images of the Plaintiff in the future.

Ultimately, for the tort of Public Disclosure of Private Facts, the Court awarded the Plaintiff $80,000 in general damages, $50,000 in punitive damages, and $25,000 in aggravated damages.

Summary By: Olalekan (Wole) Akinremi