Updated: Mar 16
The short answer is yes, you can. But here's the slightly longer answer...
We first need to mention a quick legal term that lawyers call "torts". A tort is a wrongful action or an infringement of someone else’s rights that leads to civil liability. In other words, it’s a reason to sue someone in civil court.
If you sue someone in civil court, you are usually called a plaintiff. In some cases, you might be called an applicant. The person being sued in civil court is called a defendant. In some cases, this person might be called a respondent.
In Ontario, there is a tort called "public disclosure of embarrassing private facts".
However, just because you sue someone for allegedly committing this tort against you doesn’t necessarily mean that you will win your case. In order to prove that someone committed a particular tort against you, the court will require you to prove what lawyers call the “elements of the tort”.
Think of elements as ingredients in your recipe. If you don’t have all your ingredients, you won’t be able to prove your case. Since proving each element is so important, we’re going to spend some time describing the elements the tort that we mentioned.
There are four elements to this tort:
1. The defendant publicized an aspect of the plaintiff's private life;
2. The plaintiff did not consent to the publication;
3. The matter which was publicized (or the fact that it was even published) would be highly offensive to a reasonable person; and
4. The publication was not of legitimate concern to the public.
If you sue someone for public disclosure of embarrassing private facts, it doesn’t matter if the defendant did or didn’t invade the plaintiff’s private affairs. What matters is that the defendant published something that was embarrassing about the plaintiff, even if it was true, or even if it was a picture and not necessarily a written statement, or even if the plaintiff voluntarily gave that picture or private information to the defendant.
This tort was recognized in Ontario in 2016, when the court heard a case (Doe 464533 v N.D.) about a man who posted intimate photos online of a woman with whom he was in a relationship, without her consent. In that case, the Judge said the following:
“In recent years, technology has enabled predators and bullies to victimize others by releasing their nude photos or intimate videos without consent. We now understand the devastating harm that can result from these acts, ranging from suicides by teenage victims to career-ending consequences when established persons are victimized. Society has been scrambling to catch up to this problem and the law is beginning to respond to protect victims.”
You can read the full text of that court case at the following link: http://canlii.ca/t/gn23z
KPA represents plaintiffs and defendants in lawsuits involving public disclosure of embarrassing private facts. If you would like to speak to a civil associate lawyer, click here, or book a senior partner at KPA by clicking here.