‘Revenge porn’ court judgment could serve as deterrent, says privacy law veteran

An Ontario civil court ruling is adding a hefty price tag to so-called “revenge porn” that may make purveyors of this nasty form of payback think twice, an expert in privacy and defamation law says.

Vancouver lawyer Roger McConchie calls the recent decision by Ontario Superior Court Justice David Stinson against a young man who posted video of his former girlfriend on a porn web site by “long overdue.”

Stinson awarded a young woman, identified only as Jane Doe, a total of $141,708.03 in damages, interest and court costs. He ordered her ex-boyfriend, also unnamed to help protect her identity from further humiliation, to ensure all copies of the video and any other compromising images of her were destroyed.

The post on the porn site had been removed after being up for three weeks, though the judge conceded there’s no way to know how often it had been downloaded and copied.

McConchie pointed especially to the size of the award, $100,000 in general, aggravated and punitive damages that were capped because of the simplified court process used, as a potential deterrent to aggrieved partners posting explicit photos or video online.

“This case certainly ought to send a strong message,” McConchie said in an interview with Yahoo Canada News.

“I can envisage situations where young women come into lawyer’s offices and talk about this kind of problem and this case can be used by their lawyer to persuade someone, the male, the ex-boyfriend, the defendant, that he has to change course.”

Related content: Posting explicit images now a criminal offence, advocate says

The Internet and smartphones have complicated relationship breakups. Where aggrieved partners once had to content themselves with trashing their former spouse or lover by word of mouth, now the ability to ruin someone’s reputation is only a click or two away posting things on gossip sites such as The Dirty.

The law has struggled to keep up with often despicable online backlash. Nova Scotia’s cyberbullying law, passed in the wake of Rahtaeh Parsons’ death, was struck down in the courts.

Federal law now criminalized unauthorized sharing of intimate images

A federal law came into force last year making it a crime to share intimate images of a person without their consent. A number of provincial statutes also purport to cover unauthorized distribution of such images.

A new Manitoba law, the Intimate Images Protection Act, was implemented earlier this month that gives residents the ability to sue if pictures or video of them nude or engaged in sex are distributed without their consent.

Winnipeg lawyer Curtis Unfried said he’s not aware that any claims have been filed yet under the new statute.

“I frankly expect when the first one is filed there will probably be some media attention that will be given to it,” he said.

What makes the Ontario case interesting, McConchie said, is that its the first one to use common-law principles covering invasion of privacy to render a judgment on “revenge porn.”

Many provinces – B.C., Saskatchewan, Manitoba, Quebec and Newfoundland and Labrador – have privacy legislation that can be used in civil suits, he said. The facts in the Ontario case would certainly have given rise to a claim under the B.C. Privacy Act, McConchie said.

But such cases are infrequent and damage awards generally are not enough deter people from doing it.

“Unless they’re outrageous facts, it’s hard to get a decent award,” said McConchie.

The circumstances in the Ontario case were very severe, he noted. The young woman was pressured into sending the video to her sometime boyfriend, who promptly posted it on the porn site under the title “college girl pleasures herself for ex-boyfriends (sic) delight.” He also shared it with many of their mutual friends from their high-school days.

The woman said the knowledge that the video was out there and her friends had seen it created great distress, affected her studies at university, caused her lose sleep and weight and at one point sent her to a crisis centre. Stinson likened the trauma to having been sexually assaulted.

“I would say was at the very severe end of the scale in terms of the impact on this girl,” McConchie said. “It probably had something to do with the content of the image.”

Secret video of nude woman in bathroom earns hefty judgment

One of the larger B.C. Privacy Act awards McConchie was aware of was a B.C. case where a a woman was secretly recorded nude in the bathroom of a house she had rented from her ex-boyfriend. She received a total of $65,000, McConchie said.

The difficulties with existing legislation may be why Manitoba opted to pass its intimate image law.

“They have some privacy legislation but there were some fairly large holes within it to deal with the specific issues of intimate images,” said Unfried. “That’s why they basically decided to take the step to bring in legislation specific to this issue.”

The issue also surfaces in defamation cases, McConchie said, where in addition to publishing defamatory statements about ex-girlfriends [it seems mostly women who are victimized] on gossip sites, photos or video can surface.

“In terms of my practice I have encountered many situations where female clients have been apprehensive about the ex-boyfriend’s possession of sensitive image material,” said McConchie.

Similar situations might be embedded in privacy or family law cases that are dealt with before there’s a court judgment, he added.

The incident involving Ontario’s Jane Doe took place in 2011, before the new federal law was passed. But Unfried said there’s a real possibility someone convicted criminally with distributing unauthorized images could also find themselves facing a damage claim in civil court.

Such suits are common in other cases such as employee theft, when employers sue to recover the stolen money and use the criminal conviction as proof.

Civil cases have lower burden of proof

McConchie noted there’s also a lower burden of proof in civil cases, which do not require proof beyond a reasonable doubt but on a balance of probabilities.

The National Post reported the man in the Ontario case, who did not defend himself in court, has made arrangements to pay the judgment in installments. But McConchie noted such cases carry the risk of defendants refusing or unable to pay – so-called ‘dry judgments.‘ That make it harder to justify the expense of a civil action unless a lawyer takes the case at no fee or as a duty to the community, he said.

“The more these cases come along, the less need there’s going to be for them,” said McConchie.

“I know many cases where the ex-boyfriend just refused to take down utterly disgusting, vile, defamatory allegations they’d posted on the Internet or pretended they’re not liable or refused to take down photos that are attached to those narratives. So this will be helpful as a tool of persuasion.”