Experts applaud ruling against man who posted ex's explicit video online
Michelle McQuigge, The Canadian Press
Published Wednesday, January 27, 2016 7:02PM EST
TORONTO -- Legal experts are celebrating a recent Ontario court decision that forces a man to compensate his ex-girlfriend after posting an explicit video of her online without her consent.
Both the presiding judge and legal observers say they believe the decision to be the first of its kind in Canada.
Ontario Superior Court Justice David Stinson said that the defendant, known only by his initials N.D., must pay his former girlfriend more than $140,000 in damages and interest.
Stinson's decision ruled the act of posting an intimate image online without permission can be compared to a sexual assault in terms of its impact and lasting harm.
Privacy law experts say the decision sets a precedent that will be felt throughout the country.
They say the ruling closes a gap in the legal system that left victims without the means of compensation if their privacy rights were violated in such a way.
While posting sexual images of another person without consent has been a criminal offence since 2014, both Stinson and privacy lawyers said they were not familiar with any comparable measures in civil law until now.
Donna Wilson, a Toronto-based lawyer who represented the victim, said the decision felt like a victory.
"(The client and her family) were so happy that there was finally some official recognition of the harm that she suffered, and a condemnation from the court that this is wrong and that she was the victim in this case," Wilson said in a telephone interview.
The court decision said Wilson's client and N.D. had dated for some time while attending high school in an unnamed Ontario city, but continued to stay in touch after the end of their relationship.
The decision said N.D. asked his former partner, who was then 18, to send him an explicit video that he promised he would keep completely private.
The ruling said the victim resisted for some time before complying in the fall of 2011. She later discovered that her ex had shared the video online the very day he received it and had also shown it to some of their mutual friends.
Wilson said her client was so traumatized by this development that she had to be taken to a crisis centre for help. She had trouble eating and sleeping for days on end and feared her reputation had been irreparably damaged, she added.
Wilson argued that uploading the video, which remained online for about three weeks, should be viewed as a sex crime with the same repercussions as a physical assault.
"The harm that results and the way the victims end up feeling is the same as someone in a sexual assault," she said. "They feel violated. Their bodies are being exposed in a sexual way that they haven't permitted, and the psychological harm that results is the same."
Stinson accepted Wilson's argument, saying the case could not be treated as a mere privacy breach.
"This case involves much more than an invasion of a right to informational privacy. As I have observed, in many ways it is analogous to a sexual assault," he wrote in the decision. "Given the circumstances of this case, and in particular the impact of the defendant's actions, a substantially higher award is warranted here.
David Fraser, an Internet privacy lawyer with McInnes Cooper in Halifax, said the ruling was a necessary development that may help to modernize Canada's justice system.
He said only Manitoba currently has a civil law in place to address such situations, adding recent high-profile cases such as the online bullying and subsequent suicide of Amanda Todd demonstrate the need for more comprehensive measures.
"While I don't think this is necessarily revolutionary, I think it is evolutionary," Fraser said of the Ontario ruling. "It expands the categories and also demonstrates the flexibility of our civil justice system to keep up with changing technologies and the changing environment in which we live, and to be able to fashion remedies for new or somewhat novel kinds of harm."
Stinson awarded the plaintiff $100,000 in total damages, plus an extra $41,000 in interest and legal costs.
The ruling said that N.D., who acted as his own lawyer, chose to neither defend his case nor settle out of court.