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As technology evolves, so too do the laws governing its use and the consequences thereof. A recent family decision from Ontario has expanded the province’s tort law to include “publicity which places the plaintiff in a false light in the public eye.” The decision could have a significant impact on the consequences of certain online behaviour. Let’s look at the case and what this new tort entails.

The family background

The parents were married in October 2000 and separated in September 2016. They had a son and a daughter while married. The father is a dual citizen of the United States and Canada, while the mother is a UK citizen. They moved around quite a bit including stints in the UK and the United States.

The court described the father’s behaviour during the last year of the marriage as abusive. He engaged in verbal abuse towards the mother in front of the children and threatened her and her family harm if she was ever to take the children from him. On October 16, 2016 the mother left Ontario, taking the kids to London, England. She bought round trip tickets and told the school in Ontario that her kids would be out for a few weeks, but enrolled them in school once she arrived in London.

Much of the case involved a discussion of whether the children should be allowed to stay in London. But the court also looked at the father’s online behaviour.

The father’s behaviour

The father created a number of websites following the mother’s move to the UK. He accused the mother of abducting the children. The court found the videos to be hearsay and that the father’s conduct was harassment. He accused the mother and her family of physically harming the children as well as committing other crimes.

After going through a number of other issues, the court asked whether it should award the mother damages for intentional infliction of mental suffering, invasion of privacy, and punitive damages.

The tort

The American Law Society has adopted four types of torts related to the invasion of privacy. They are:

1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.

2. Public disclosure of embarrassing private facts about the plaintiff.

3. Publicity which places the plaintiff in a false light in the public eye.

4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.

Until this decision, Ontario courts had recognized all but the third. In its decision, the court wrote it was adopting the third tort as well as the elements necessary for it, which are:

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if

(a) the false light in which the other was placed would be highly offensive to a reasonable person, and

(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

The court wrote, “It follows that one who subjects another to highly offensive publicity can be held responsible whether the publicity is true or false. This indeed is precisely why the tort of publicity placing a person a false light should be recognized. It would be absurd if a defendant could escape liability for invasion of privacy simply because the statements they have made about another person are false,” adding that the false light the father placed on the mother was highly offensive. Beyond just being hurtful, they led to the mother and her family receiving visits from the police.

The court found that the father’s actions met the threshold to prove the tort, awarding the mother $300,000 in total damages.

The decision leaves a strong reminder of the consequences that can come with online harassment.

Going through a separation or divorce with a narcissistic ex can a terrible experience.  At Gelman & Associates, we offer a free consultation with a psychological professional if required.  We have the legal knowledge to ensure you are receiving sound legal advice, and we want you to have the same peace of mind when it comes to your well being.  We are conveniently located in Aurora, Barrie, Downtown Toronto, Mississauga, North York and Scarborough. Call us at (844) 769-0737  or contact us online.