Public Disclosure of Private Facts: ES v Shillington, 2021 ABQB 739

In an effort to remedy potential gaps and limitations in the new Protecting Victims of Non-Consensual Distribution of Intimate Images Act (the “Act”), Justice Inglis established a new liability for a cause of action for damages related to the public disclosure of private facts in ES v Shillington, 2021 ABQB 739 (“Shillington”).

In Shillington, the Plaintiff sought #damages under the Act and an injunctive relief requiring the Defendant to remove and not repost any private images of her. The parties were in a romantic relationship between 2005 and 2016. The Plaintiff had shared intimate photographs with the Defendant in various states of undress and whilst engaging in sexual activity. Near the end of their relationship, the Defendant confessed to the Plaintiff that he had shared some of the intimate photographs online dating back to 2006. The Plaintiff was able to locate some of the images online, some of which were found on an internet pornography site.

In her decision, Justice Inglis wrote that the proposed remedy could “protect information not contemplated by [the Act]”. The proper test for liability under this new cause of action related to the public disclosure of private facts requires the Plaintiff 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 Defendant was noted in default and did not defend this action.

Ultimately, the Defendant was ordered to pay the Plaintiff $460,000.00 in total damages, comprised of $155,000.00 in general, punitive, and aggravated damages for having publicly disclosed private facts and a further $305,000.00 in damages related to sexual assault and assault and battery.

The full case can be found on CanLii here: https://canlii.ca/t/jj3kv

Ronald S. Foster, Q.C. , senior counsel

Family Law Solutions, Foster Dickson O’Brien

1400, 350 7th Avenue SW, Calgary Alberta T2P 3N9

T 587 315 6491

E rfoster@flslaw.ca

WWW.FLSLAW.CA

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