Nancy Rubin, QC

Nova Scotia has taken a big step forward in recognizing the tort of publication of private facts. The case, Racki v Racki, 2021 NSSC 46 comes hot on the heels of Ontario’s recent recognition of the new common law tort of internet harassment which we previously discussed. The Nova Scotia case arose in the context of an acrimonious divorce and custody dispute.

Background

The ex-husband self-published a book about how he overcame hardship to become a successful entrepreneur. The book was widely promoted on his various social media platforms and was available for download.

The book also disclosed incidentally that his former wife had been addicted to sleeping pills and attempted suicide twice. These statements were true so they didn’t defame her, and the Charter’s right to privacy does not apply to common law disputes between individuals. Undeterred, she commenced an action for damages on the basis of public disclosure of private facts about her.

This cause of action has been recognized in the U.S., and a few cases in the United Kingdom and New Zealand but to date in Canada, there has been no definitive recognition of the action. On occasion, publication is discussed as an aggravating factor going to damages in the nascent tort of “intrusion upon seclusion”.

Recognition and elements of the tort

Justice Coughlan accepted that a tort exists in Nova Scotia for publication of private facts. At paragraphs 25 and 26, he explains the basis and articulates the test:

[25]         Today a person’s privacy is a precious commodity which is becoming harder to protect. Modern life infringes on all aspects of personal privacy. Technology, which changes rapidly, has made it possible to track all aspects of a person’s life. We live in a world much different from just a decade or two ago. As society changes the law must evolve to meet changing circumstances. Existing causes of action, such as defamation with the defences available to such a claim, do not address the circumstances arising from the public disclosure of private facts. Considering all of the foregoing, it is appropriate to find the existence in Nova Scotia of the right of action for public disclosure of private facts of another.

[26]         The elements of the tort are: (a) There must be publicity of the facts communicated to the public at large to become a matter of public knowledge; (b) The facts are those to which there is a reasonable expectation of privacy; and (c) The publicity given to those private facts must be considered, viewed objectively, as highly offensive to a reasonable person causing distress, humiliation or anguish.

The court’s findings

Acknowledging the right to privacy has to be weighed against other interests such as freedom of expression, the judge was influenced by what he perceived as the malicious inclusion of unnecessary facts to the subject-matter of the book:

[38]         The right to privacy is not absolute. It has to be weighed against competing rights including freedom of expression. In this case Mr. Racki has the right to publish a book to encourage entrepreneurship and overcome hardship. But the issue in considering the Book as a whole, is whether the publication of the private facts of Ms. Racki’s addiction and suicide attempts is in the public interest.

…

[40]         Considering the purpose of the Book, the publication of the facts of Ms. Racki’s addiction and suicide attempts was not in the public interest, in that the facts were not required to advance the purpose of the Book about overcoming hardships and starting a business. Mr. Racki could have stated his relationship with his wife was falling apart without disclosing the facts his wife was addicted to sleeping pills and attempted suicide. Given the facts of this case Mr. Racki’s right to freedom of expression does not prevail over Ms. Racki’s privacy claim.

In the result, Justice Coughlan ordered an injunction to remove the offending portions of the book and awarded the wife $18,000 in general damages and $10,000 in aggravated damages as the publication was found to be motivated by actual malice.  The court rejected her claim for punitive damages.

Key takeaways

The increasing importance placed on privacy and the facts of this case demanded a remedy. However, the judicial weighing of the purpose of the expression and the public interest in the subject-matter bears watching to see how far this tort will be extended.

This update is intended for general information only. If you have questions about the above, please contact a member of our Media, Advertising & Marketing group.