In the 2016 decision of Doe 464533 v ND, the Ontario Superior Court further developed the common law tort of invasion of privacy in Ontario. The decision concerned what is colloquially known as ‘revenge porn’. The initial finding of liability on the part of the defendant was celebrated by legal experts, who praised the Court’s clarification of the contours of this tort. The Doe decision, while being of limited precedential value, serves as a fruitful site of exploration for the potentiality of Canadian tort law to effectively respond to cases dealing with potential breaches of privacy, particularly as they occur in the digital sphere.
This article examines the Doe decision with the view that the invasion of privacy tort in Canada ought to develop so as to effectively respond to instances of ‘revenge porn’ and unforeseen breaches of privacy that occur thanks to technological and social change. This comment proceeds in three parts, beginning with a brief contextual explanation of the facts and law at play. Second, it explores the shortcomings of tort of public disclosure of private facts with respect to unforeseen breaches of privacy that occur due to technological and social change. This comment concludes by considering the possibility of utilizing a ‘reasonable expectation of privacy’ test, in order to ensure the tort’s survival and due to numerous key advantages of such an approach.
Stevens, Yuan, ‘Revenge Porn,’ Tort Law, and Changing Socio-Technological Realities: A Commentary on Doe 464533 v ND (November 1, 2017). Canadian Journal of Law and Technology, Volume 15, 2017.