Words Matter: New Privacy Tort Established in Ontario

In December 2019, the new “false light” privacy tort was established in Ontario and it poses significant liability risk for many, including employers.  It relates to invasion of privacy and “publicity which places the plaintiff in a false light in the public eye”.  The impact of this judgment and the recognition of a fourth privacy tort in Ontario will certainly reverberate in other legal areas – including employment law.  Given the events of 2020 and many updates to employment legislation, insufficient light may have been previously shone on this new tort.    

This tort was officially recognized by the Ontario Superior Court of Justice in the family law decision Yenovkian v. Gulian, 2019 ONSC 7279 (“Gulian”). In Gulian, the defendant husband was held liable under this tort for his cyberbullying campaign, which included false and damaging posts online about his wife and her lawyer, his children, and a judge, among others.

In Gulian, the court provided the following test for establishing the false light privacy tort:

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.

Simply expressed, this means that if you post highly offensive information about another that you know to be false, such as defamatory information, you may be held accountable under this new tort (and perhaps others).  That being said, the court in Gulian made it clear that this tort does not necessarily require actual defamation to be established, though defamation will often be incidental to the publicity.

In terms of assessing the extent of damages related to this tort, the court in Gulian adopted and modified the factors from those that were initially set out by the Supreme Court of Canada defamation case of Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130.  These include:

  • a) the nature of the false publicity and the circumstances in which it was made,
  • b) the nature and position of the victim of the false publicity,
  • c) the possible effects of the false publicity statement upon the life of the plaintiff, and
  • d) the actions and motivations of the defendant.

Finally, it is important to note that the court in Gulian held that the ability to establish this tort does not necessarily turn on the literal truth or falsity of the publicity.  The invasion of privacy may include true information.  What is essential is that this invasion includes the disclosure of patently sensitive and private information about the affected individual(s).  That is – that there is a serious invasion of privacy.

Relevance to Employment Law

In this day and age, we all have public personas and reputations. When an employee, whether working remotely from home or from the workplace, posts online or otherwise makes negative commentary in a public forum about the employer’s clients, customers, and/or other employees that portray such persons in a false light, the employer – like the employer in the seminal Ontario “intrusion upon seclusion” case Jones v. Tsige, 2012 ONCA 32 – may be pulled into the fray, and worse yet be held vicariously liable.  On the flip side, there is the potential that employers may also have recourse to rely on this tort to protect their own reputations as well as the reputations of their employees, clients, and customers in scenarios where another party, such as a former employee or otherwise, publishes false and damaging information about them.

In order to mitigate the litigation risk and public relations nightmares, employers should: 1) train their employees on effective communication practices to ensure that no public statements are made on behalf of the employer that could be interpreted as portraying another party, such as a resigned or terminated employee, in a false or damaging light; and 2) vigilantly review any public communications made by their employees or other representatives.

While the law regarding the false light privacy tort remains in its infancy in Ontario, employers would be wise to be vigilant regarding their public communications and mindful of the significant liability that could arise for failing to do so.

Disclaimer: Information made available in this article is provided for general information purposes only and is provided without representation for its accuracy or completeness. It is not legal advice and should not be relied upon. You should not take any action or fail to take any action based on the information set out in this article or on this website.  Consult a lawyer at Sullivan Mahoney LLP and seek professional legal advice tailored to your unique situation.