Privacy Rights in the Internet Age and The New Tort of Public Disclosure of Private Facts

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“Society has been scrambling to catch up to this problem [the publication of intimate photos or videos online without consent] and the law is beginning to respond to protect victims.” – Justice Stinson in Jane Doe 464533 v N.D., 2017 ONSC 127

Gradually courts have been awarding damages for the tort of public disclosure of private information. The tort of public disclosure of private information consists of the following elements: (a) the defendant publicized an aspect of the plaintiff’s private life; (b) the plaintiff did not consent to the publication; (c) its publication would be highly offensive to a reasonable person; and (d) the publication was not of legitimate concern to the public.

In Jane Doe 72511 v N.M., [2018] OJ No. 5741, Jane Doe sued her ex-boyfriend for abusing her and for uploading an intimate video of them online. Jane Doe also sued her abuser’s parents for failing to stop the abuse in their home.

One day, after a highly violent encounter, Jane Doe reported the defendant N.M. to the police. “N.M. forced Jane into his car… N.M. grabbed her head and smashed it into the passenger side window. Jane pulled the mirror down and, seeing that she was bleeding, ripped off the sun visor in shock… N.M. was angry that Jane had damaged the car. He parked in the driveway and came around to her side of the car… he dragged her out of the car by her feet and shoved her into his parents’ house.” He was charged and later convicted of assault.

In retaliation for his criminal conviction, N.M. uploaded a video of them engaged in a sex act. The video was seen over 60,000 times and downloaded an unknown number of times. The video has since been removed at the request of the plaintiff.

In deciding the civil suit, Justice Gomery found that N.M. was liable for assault, battery, and public disclosure of private information. He was ordered to pay her $20,000 in general damages for the abuse and $100,000 for the posting of the video online ($75,000 for general and aggravated damages and $25,000 in punitive damages). His parents were also found to be jointly and severally liable for Jane’s damages from the assault and battery as occupiers of the house. As occupiers of the house, they had a duty to take steps to keep her safe while she was there.

In recognizing the tort of public disclosure of private information, Justice Gomery reaffirmed that the courts should provide a civil recourse for victims of public disclosure of private information. Justice Gomery wrote that our courts need to “address a challenge posed by new technology… Failing to provide a remedy in this case would deprive Jane of recourse in the face of the breach of her privacy rights.”

In this case, the website was not sued for the publication of the video. Perhaps the company running the website was outside the jurisdiction of Canada. In which case, the best recourse may be to pressure the company in charge of the domain name registration to disable the site’s web address. (see the NYT article “Shut the Site Down,’ Says the Creator of 8chan, a Megaphone for Gunmen.) However, if there was a connection to Ontario, then courts should be willing to assume jurisdiction and sanction a company in the appropriate circumstances.

In the article “Ontario’s New Invasion of Privacy Torts”, Sarit Mizrahi writes that “the courts should be willing to treat a company’s decision to utilize inadequate security measures as sufficient to engage the tort of intrusion upon seclusion and public disclosure of private facts where the risk of privacy is appreciated.” Malicious users exist beyond revenge porn, including hackers. Hackers can exploit security flaws in our devices to breach privacy rights and disclose private information. For example, hackers can gain access to a television’s microphone and listen in on you in your home; hackers can gain access to a baby monitor; they can access a company’s database of credit cards and release the information.

Mizrahi writes that “While the law obliges these companies to protect the information and devices against unauthorized access, the reality is that the steps taken are often insufficient to abolish the security flaws exploited by malicious users… users are often left without a sufficient legal remedy for this serious invasion of their privacy.” By recognizing a civil right of action, the courts are enabling individuals to enforce their privacy rights.

(This article was originally posted on slaw.caViews are my own and do not reflect the views of any organization.)

Retired Judges: When Does Advocacy Begin?

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In the Macleans’ article “Talk to my former Supreme Court judge“, the arms race to have a retired Supreme Court of Canada judge bless your position is discussed. Shannon Proudfoot of Maclean’s writes:

[I]t emerged that retired Supreme Court judge Frank Iacobucci was acting as legal counsel for the Quebec engineering giant as it sought a remediation agreement in the face of accusations of fraud and bribery… In an October letter to Prime Minister Justin Trudeau, SNC-Lavalin CEO Neil Bruce seemed wounded that Iacobucci had not even got the company in the door. SNC’s lawyer, “a well-respected expert in the law whose credentials are impeccable, former justice of the Supreme Court of Canada, was not afforded the courtesy of a meeting or even a call” with the director of public prosecutions to make the company’s case…

The Honourable Iacobucci’s representation of SNC-Lavalin begs the following questions, when does advocacy begin? Is it too narrow of a rule to bar judges only from appearing before tribunals or courts? Does deference towards judges require that retired judges abstain completely from legal services? Are judges undermining the spirit of the Rules by representing clients pre-litigation?

Rules for retired judges are inconsistent across the country. In Ontario, the Rules of Professional Conduct state that:

Appearance as Counsel or Advocate

7.7-1.2 A lawyer to whom this Rule applies shall not appear as counsel or advocate in any court, or in chambers, or before any administrative board or tribunal without the express approval of a panel of the Hearing Division of the Law Society Tribunal. This approval may only be granted in exceptional circumstances and may be restricted as the panel sees fit.

To truly understand whether the spirit of the Rules is being undermined, we need to address what are “legal services”? In the decision Bergen & Associates Incorporated v. Sherman, 2014 ONSC 7213 by Justice F. L. Myers of the Superior Court of Ontario, Myers J. addresses the meaning of legal services. Justice Myers writes at paragraph 20 that “The provision of legal services includes the application of legal principles and legal judgment with regard to the circumstances or objectives of a client, negotiating the legal interests, rights or responsibilities of a client, giving advice concerning such legal interests, rights or responsibilities, and drafting documents affecting such legal interests, rights, or responsibilities.”

Justice Myers quotes Mr. Orkin, in the context of assessing a lawyer’s bill. If only a lawyer can perform the work, then it is legal services. However, Orkin writes that just because a non-lawyer can provide the same services does not automatically make it non-legal work. If the services are “bound up in the professional character of the lawyer”, then it is legal work.

I would argue that it is not enough to prohibit advocacy only in the courtroom. The service of retired judges are bound up in the “professional character of the lawyer”. The hiring of retired judges to bless politicized opinions is problematic. It has the potential to interfere with the adjudication of decisions or undermine the decisions made by judges.

For instance, when the Harper government released the opinion of the Honourable Justice Binnie regarding the appointment of Justice Marc Nadon, in my opinion, it undermined the Supreme Court of Canada’s decision. Justice Binnie’s opinion contradicted the Supreme Court of Canada’s decision on whether Justice Nadon could be appointed to the Supreme Court of Canada.

Before we revise the rules on the acceptable work of retired judges, we need to address “When does advocacy begin?”

(Opinions are my own and do not represent the views of any organization.)

Appointing Judges: Can Statistics Help

The appointment process for judges is somewhat opaque. We may know how many judges there are in Canada, but why some lawyers are chosen over other lawyers remains a bit of a mystery.

Can statistics help us identify who would make a good judge? Can it help us answer a very difficult question?

Over the years, it has been observed that humans have a tendency to substitute a hard question with an easy question. For instance, “the question we face is whether this candidate can succeed. The question we seem to answer is whether she interviews well.” (Thinking Fast and Slow, Daniel Kahneman)

Applying statistics may be of help. In the Undoing Project, Michael Lewis discusses using statistics to identify talent in the context of basketball. He points to Daryl More, the general manager of the Houston Rockets basketball team. Daryl uses a statistically based hiring process over instinct. “Job interviews were magic shows.” Which meant that hopeful recruits charmed interviewers, leading to some poor hires. While people that didn’t look the part, but had the skills, were sometimes overlooked.

To combat this, Daryl More built a statistical model. This model helped predict who would be future stars, and helped avoid people from selecting recruits based on confirmation bias. Or on selecting people based on substituting a hard question with an easier question.

Building this model required measuring many factors, not just how many points someone scored. But also, the score of the game when someone was on the bench. The points and rebounds per minute rather than points by game. The number of genuine opportunities for rebounds someone had over how many he snagged. And so on.

However, there was a limit to the objective data. You still needed human judgement in the hiring process. “Humans sometimes had access to information that the model did not.” For example, models are bad at knowing that someone performed poorly one year because they hated their coach and stopped trying.

Although choosing judges is different than choosing basketball players, statistics may be a helpful tool in predicting which lawyers compared to other lawyers will make great judges.

 

(Views are my own and do not reflect the views of any organization.)

Do we have free will: What does this mean for the law?

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Do we have free will?

The law presupposes that we have free will. It is an implicit premise of our legal system.   But, what if science shows otherwise? Can we maintain a legal system based on the illusion of free will?

In The Self Illusion: How the Social Brain Creates Identity Professor Bruce Hood questions free will. Professor Hood states that most people believe that decisions are not pre-ordained and that we choose between alternatives (“free will”). However, neuroscience tells us otherwise. “Free will is part of the self illusion”.

He refers to neuroscientist David Eagleman. Eagleman states that we are entering a new era of neuroscience. In which our understanding of the brain “forces us to confront the difficulty of establishing when others are responsible for their actions.”

Professor Hood explains that decisions are a culmination of a variety factors, including a multitude of hidden factors. These factors include your genetic inheritance, life experiences, current circumstances, planned goals, and external sources. These all play as patterns of neuronal architecture. “My biases, my memories, my perceptions, and my thoughts are the interacting patterns of excitation and inhibition in my brain. And when the checks and balances are finally done, the resulting sums of all of these complex interactions are the decisions and the choices that I make. We are not aware of these influences because they are unconscious and so we feel that we have arrived at the decision independently…”

However, just because free will does not exist, doesn’t mean that it is pointless. Professor Hood explains that when we believe that we are the masters of our destiny we behave differently. “Workers who believe in free will outperform their colleagues… The very act of believing means that you change the way you behave in ways that will benefit you… [I]t is important for our self-motivation… [and] for how others view us.”

Even though free will may be an illusion, the illusion itself is necessary. Not only for our own lives, but for our legal system. It allows our courts to hold people accountable for their actions. And holding people accountable for their actions maintains order. By discouraging bad behaviour and by providing a mechanism for justice, we keep chaos away.

 

(Views are my own and do not reflect the views of any organization.)

Saaditi v Moorhead: Case Comment

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In Medieval Europe, deciding guilt or innocence was sometimes decided by trial by ordeal. It was believed that the holy water would reject a liar. So they would tie up an accused person and throw him in the water. If you floated, you were guilty. If you drowned, you were innocent.

Has the law evolved much further from this barbaric custom? Many think we have.

In Unfair: The New Science of Criminal Injustice, law professor Adam Benforado begs to differ. He points out that the law of evidence hasn’t caught up with neuroscience. That the way we decide cases isn’t always justifiable. And he gives examples of how we are blind to problematic reasoning.

As we uncover the secret world of detectives, judges, prisoners, and others, we will confront challenging questions. What if our legal rules and practices not only are blind to the real influences on human behaviour but serve to actively perpetuate myths that neuroscientists and psychologists have revealed to be false? What if the structures and frameworks of criminal law that we have adopted to eliminate bias actually make matters worse? And if most people are unfamiliar with the complexities of our hidden minds, might there be power players out there taking advantage of this knowledge to stack the cards in their favour at the expense of the weakest?… Do we care that the path through our system is greased for some and tarred for others, owing to the cognitive biases of police officers, jurors, and judges? Does it matter that certain people are disadvantaged front the outset simply because of their structure of their brain or the shape of their face? … Is justice really blind? [Or is lady justice taking in a lot of information and once she has a picture of you, there’s not much you can do to change it?]… We are masters at jumping to conclusions based on an extremely limited amounts of evidence.

Is it time we rethink the way we establish facts in courtrooms? What role should science have in evidence law?

Interestingly, most rules of evidence are based on judicial decisions. Judges making rulings on a set of facts. They are not rooted in science. They are not thought out by bureaucrats. They are not meticulously updated to keep up with scientific developments. In fact, there is a tension between judges and science.

I remember first entering law school, being surprised that judges did not rely on secondary material, like research papers in coming to conclusions. Rather they were restricted to case law and witnesses. But is that justifiable? How should the scientific method influence judicial decision making? Are the senses really enough to judge a case? How should science and law influence one another?

In Saadati v Moorhead, 2017 SCC 28 the Supreme Court of Canada narrowly considered this question. At issue in the appeal was the necessity of medical expert evidence. The trial judge found that a series of motor vehicle accidents caused the plaintiff psychological injuries. However, no expert evidence was put forth to establish the mental injury.

Ultimately, the Supreme Court welcomed expert evidence. But said it wasn’t necessary to prove mental injury. It also wasn’t necessary to confine a mental injury to a psychiatric disorder.

Justice Brown  stated at paragraph 2:

[2]                              This Court has, however, never required claimants to show a recognizable psychiatric illness as a precondition to recovery for mental injury. Nor, in my view, would it be desirable for it to do so now… recovery for mental injury does not require proof of a recognizable psychiatric illness. [Requiring proof of psychiatric illness is] premised upon dubious perceptions of psychiatry and of mental illness in general, which Canadian tort law should repudiate…

At paragraph 31, Justice Brown states that confining compensable mental injury to a medical condition is “suspect as a matter of methodology”. And that the categories identified as psychiatric disorders are constantly changing and evolving.

Although I agree that lawyers and judges shouldn’t abdicate their critical thinking to hired guns and that it shouldn’t be necessary to adduce expert evidence to show an injury, I strongly believe that we need to rethink the rules of evidence. The rules of evidence and how we apply these rules need to be grounded in science.

(Views are my own and do not represent the views of any organization.)

Do Judges have a Public Relations Problem?

Recently the TV show This Hour has 22 Minutes did a piece on Canadian judges. It’s a riveting piece on the public’s perception of judges.

The skit called “Judges: a Danger to Canadian Women” can be viewed here: http://www.cbc.ca/22minutes/videos/clips-season-24/judges-a-danger-to-canadian-women. At first viewers think the show is commenting on xenophobia, then it turns out to be about judges.

The judiciary should take this piece seriously. It is a current temperature read on the public’s feelings towards judges.

Is it fair that judges are seen negatively?

No. Most judges are excellent, care about justice, and are deeply competent.

Despite this, the public sees things differently. The internet has transformed the way we receive information. However, our courts have failed to reflect this change. Simply rendering decisions in dense, legalese is not enough. The public expects and requires our courts to communicate with them in a way that they understand.

I hope that our courts can adapt new ways of explaining itself to the public. Including explaining our judicial system, explaining the law, and explaining their decisions in novel ways.

To find new ways of doing things, we need to ask questions. Why are decisions only provided with written reasons? We now can create videos. We can create flowcharts. We can create graphics. We can use social media.

Also, why do we televise Supreme Court proceedings and not others? What about matters at the Ontario Court of Appeal? What about trials of national importance or of great public interest? Wouldn’t seeing great lawyers and great judges in action increase our faith in our judiciary?

Of course the medium would need to be adjusted accordingly. But if our courts want to continue to maintain the public’s trust, then it needs to look seriously at how it communicates with the public. Public trust in the judiciary is integral to democratic order.

(Views expressed in this blog are my own and do not reflect the views of any organization.)

Is Justice Blind?

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Justice is blind or so they say. It is supposed to pay “no heed to the social status or personal characteristics of the litigants”.

But this simply is not true.

Race, gender, religion, socio-economic background, sexuality, ethnicity, ability, education, family upbringing, all play a role in the way judges assess the cases before them. But to what extent should a judge’s personal identity and experience be brought to bear in administering justice?

In the decision R. v. Pelletier, 2016 ONCJ 628, judge Justice Nakatsuru explicitly acknowledges his own identity and the identity of the offender in assessing the case before him. In R. v. Pelletier, Ms. Pelletier was sentenced to jail for 3 years for two robberies, arson, and an assault. In addition to jail time, she was ordered to undergo supervision. While undergoing this supervision, she tested positively for cocaine. And in doing so, was in breach of a court order.

In determining her court sentence, Justice Nakatsuru wrote:

[7] You are an indigenous person… As you know, I myself was raised on the prairies. I know firsthand the discrimination suffered by indigenous peoples in that part of our country. It is something all right thinking people are ashamed of…

[20] In addition, the risk of re-offending in your case is not just connected to an untreated addiction. It is connected to the historical injustice done to indigenous people. It is connected to your own personal indigenous history. Connected to the abuse you suffered…

[25] I find that rehabilitation is an important principle in my sentence. I find that restraint in imposing jail is important. Obviously it is important for you Ms. Pelletier. But is also important to deal with the problem we have in this country of sending too many indigenous offenders to jail. The courts recognize that problem. I have to address it in my sentencing of you.

[30] After careful reflection, Ms. Pelletier, I am sending you home. I wish you all the best in your life.

[31] After taking into account time served, the sentence will be 1 day.

It is a well written decision. It acknowledges the background of Ms. Pelletier, and it acknowledges the background of the judge. But if theoretically justice is to be blind, then it begs the following questions. To what extent should a judge’s personal background play in deciding a case? To what extent should the personal background of the litigant play in deciding the case? To what extent should justice really be blind?