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.)

Court Forms: Should They be Eliminated?

 

Court forms are confusing. They are difficult to fill in and contain legal jargon. Even worst, the guides for court forms can be hard to follow. Especially, if you do not have a strong grasp of English or an understanding of the court system.

I have personally witnessed numerous people struggle with court forms, both while waiting to file a court document and while volunteering at a legal clinic.  In the article “Literacy Requirements of Court Documents: An Underexplored Barrier to Access to Justice“, Professor Amy Salzyn, et al., write about the difficulties in navigating court forms. For example, some forms indicate “no.” in place of the word number. Other forms refer to “pre-judgment interest”, without providing an explanation for what “pre-judgment interest” means. Even using the word “plaintiff”, without an explanation, can be confusing.

What is the solution?

Most court forms should be eliminated. Instead, the government should remove forms that are essentially duplicates of each other and leaving only the most necessary forms. The remaining forms should be designed with accessibility and the user in mind.

When designing for the user, we should consider the best format. Perhaps the best format is a fillable online form. The user could be asked questions online, and then the answers could be used to generate the court forms. The questions could be asked in writing or by video. For originating claims, questions should be asked to ensure that the form is being filed in the right jurisdiction.

Guides for completing the forms should be available in multiple formats, from written formats to videos to infographics. The guides should be simple. Less words, the better.

Common types of claims should have examples online for people to follow. The forms should also contain links to legislation so people know that they are referencing the right laws and can read the laws.

After the forms are completed, people should be directed to videos and written guides explaining the next steps. People should be able to book court appearances online. There should be an easy portal to follow.

Eventually each case, should have its own electronic file. Where litigants and judges can access the pleadings, motions, and court decisions for each case.

Unfortunately, in Ontario there has been little success in creating electronic filing or better court forms. But how much longer can our court system rely exclusively on paper and retain the confidence of the public?

(Originally posted on slaw.caViews are my own and do not reflect the views of any organization.)

 

Is Selling Prescription Eyewear Online Legal?

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Nowadays you can buy almost anything online: clothing, food, glasses, jewelry, medication, mattresses, and the list goes on. So is there a problem with buying prescription eyewear online?

The College of Optometrists of Ontario thought so. The College launched a court application against Essilor Group Canada Inc. for operating the online retailer Clearly.ca and Coastal. Almost every action taken by Clearly and Coastal happened in British Columbia. Consumers would order the glasses and contacts online, using a prescription from their doctor, and the glasses and contacts would be shipped from British Columbia. By ordering online, consumers would miss out on having their pupillary distance tailor-measured by a professional for their specific eyewear.

In the case College of Optometrists of Ontario et al v. Essilor Group Canada Inc., 2018 ONSC 206, the College argued that there was a risk of harm in allowing prescription eyewear and contacts to be sold online. Essilor argued that the College was actually concerned with maintaining a monopoly in Ontario by preventing online retail from operating in Ontario.

Justice Lederer ruled that the company violated the Regulated Health Professionals Act by accepting orders for prescription eyewear from Ontario residents in British Columbia and delivering them to Ontario residents. “Eyeglasses and contact lenses are to be dispensed with the proper involvement of an optometrist or optician licensed in Ontario.”

The Ontario Court of Appeal reversed the decision of Justice Lederer. Justice Brown, writing for the court, reasoned in College of Optometrists of Ontario v. Essilor Group Inc., 2019 ONCA 265, that a customer’s placement of an order from an Ontario-located device does not amount to dispensing eyewear. At paragraph 126, Justice Brown writes that: “the act of delivering eyewear to a person primarily has a commercial aspect, not a health care one… Where the supplier of the prescription eyewear operates in another province and complies with that province’s health professions regulatory regime when filling an online order placed by an Ontario customer, the final act of delivering that product to the Ontario purchaser does not amount to the performance of a ‘controlled act’ by the supplier.”

Justice Brown further wrote that applying the Regulated Health Professionals Act to the online sale of eyewear would grant a commercial monopoly to Ontario’s optometrists and opticians over the distribution of orders for prescription eyewear. If the legislature meant to do so, then it would need to legislate it explicitly. 

I anticipate the courts will be dealing with similar cases by regulatory bodies in the years to come. As the internet changes the way services are delivered, regulatory bodies will continue to question whether:

  • (a) there has been the unauthorized practice of medicine, law, engineering, teaching, accounting, and so on; and
  • (b) if the public’s safety has been undermined by providing these services online. 

In many instances, online services are a safe alternative to in-person services, like Telemedicine. In the book the Future of the Professions, Richard Susskind and Daniel Susskind write that “Many professionals seem to have lost sight of the reasons why we have personal interaction in the first place. It is a feature of the one-to-one nature of the traditional approach. As a consequence of its longstanding presence, it has gained an aura of indispensability. But we have to remember its origins – only as a feature … of sharing practical expertise. If, however, we can find better ways of sharing that expertise that require less personal interaction, then we should not defend this interaction for its own sake.”

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

Third Party Funding: Can AI Help?

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Recently Alan Freeman wrote about the use of artificial intelligence in third party funding of litigation, in his article “Intelligent Funding: Could AI Drive the Future of Litigation Finance”. Litigation funding, also known as third party funding, provides financing to plaintiffs and law firms to enable them to pursue their claims in return for a piece of the recovery.

For a court to approve a third party funding agreement, the party must show that (a) the agreement is necessary to provide access to justice, (b) that access to justice is facilitated by the third party funding agreement in a meaningful way, (c) the agreement is fair and reasonable by enabling access to justice while protecting the interests of the defendants, (d) the third party funder is not over-compensated, and (e) the third party funder is not interfering with the solicitor-client relationship, including the duty of loyalty.  Typically in class action law suits the third party funder takes about 10% or less of the recovery. (Houle v St. Jude Medical Inc., 2018 ONSC 6352 at paras 34, 63-64)

Through applying artificial intelligence to thousands of cases, third party funders may be able to better determine which cases to “bet” on. Freeman writes that by using artificial intelligence programs, like Blue J Legal, third party funders may be able to determine the likely outcome of a case. He further quotes Professor Alarie (also a founder of Blue J Legal) that using artificial intelligence programs may become common place for third party funders.

I also predict that predictive programs will become more prevalent in the law. However, as long as humans are the judges, artificial intelligence programs will have its limitations in predicting the outcome of cases. There are many influencing factors beyond precedent in deciding a case. The evidence that is admitted and how witnesses are perceived also play a major role in the outcome of the case.

Additionally, there are opportunities for artificial intelligence programs to make mistakes. In the New Yorker article The Hidden Costs of Automated Thinking, Jonathan Zittrain writes that machine learning systems (subset of artificial intelligence) can be tricked into making inaccurate judgments. “Seduced by the predictive power of such systems, we may stand down the human judges whom they promise to replace. But they will remain susceptible to hijacking—and we will have no easy process for validating the answers they continue to produce.”

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

Cost Award from Blogging: Blake v Blake

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If you or your firm blogs about a court decision, then the court will infer that you knew about the case.

In Blake v. Blake, 2019 ONSC 4062, Justice Daley wrote about the consequences of blogging about a case but failing to bring that case to the court’s attention.  Counsel for the respondent blogged about a leading case, but did not tell the court about it. Instead, through research of his own, Justice Daley found the leading case and then found the firm blog post on it. As a result, Justice Daley awarded substantial indemnity costs against the respondents.

At paragraph 13, Justice Daley writes that “The conduct of counsel for the respondents gives rise to some very serious concerns regarding counsel’s understanding and recognition of his duty as an officer of the court and his duty of candor with counsel opposite.”

[22]      In the course of considering the law in this area, while my decision was under reserve, an estates litigation blog commentary dated November 16, 2018, also came to my attention entitled “Is a Notice of Objection to Accounts Subject to a Limitation Period?”

[23]      It is most noteworthy that this blog was written by solicitor Charles Wagner on behalf of his law firm Wagner Sidlofsky. This is the one and the same law firm that the respondents’ counsel practices with. This is a small specialized firm practicing in the area of estate litigation.

Justice Daley concluded that counsel for the respondent knew about the case and failed to bring it to his attention. By failing to bring the decision to the attention of the court, Justice Daley held that counsel misled the court.

At paragraphs 31-32, Justice Daley writes: “… while a lawyer does not need to assist an adversary and is permitted to be silent on certain matters, they are not permitted to actively mislead the court.” Counsel are also not permitted to be ignorant of the law. “Thus, while this may not amount to a deliberate misrepresentation, counsel nevertheless may be found to be in breach of their duty to the court for failing to have conducted reasonable research as to relevant authorities.”

The moral of the story is that counsel has a duty to bring to the court’s attention leading, relevant cases, even if it is contrary to their position.

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

 

Analyzing Court Decisions According to Judges

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“Law is reason free from passion.” – Aristotle

As a precedent based system, law lends itself nicely to predictive analytics. In predictive analytics, historical data is used to build a mathematical model. This model can then be used to predict what will happen next.

As case law becomes easier to access, many companies are developing predictive analytic tools based on case law. Predictive analytics can be focused on different areas of law. For example, predicting the outcomes of cases in employment, tax, insurance, or family law. Another area predictive analytics can be focused on are on the actors. For example, predicting how judges decide cases, how successful lawyers tend to be in court, and the success of repeat litigants.

Recently, France has banned a type of predictive analytics. Article 33 of the Justice Reform Act bans individuals or companies from publicly revealing the patterns of judges’ decisions. Anyone breaking this rule can face a penalty of five years in prison.

Theoretically, it should not matter who hears a case. The law is to be applied the same way. But by banning this type of predictive analytics, France is recognizing that sometimes the judge’s identity makes all the difference.  How do we reconcile identity with a precedent based system?

(Originally posted on slaw.ca. Views are my own and do not represent the views of any organization.)

In Praise of the Honourable Justice Clement Gascon

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Recently, the Honourable Justice Clement Gascon of the Supreme Court of Canada addressed his momentary absence from work on May 8th, 2019.

For over twenty years, I have been dealing with a sometimes insidious illness: depression and anxiety disorders. This is an illness that can be treated and controlled, some days better than others. On the afternoon of Wednesday, May 8, affected both by the recent announcement of a difficult and heart-rending career decision and by a change in medication, I conducted myself in an unprecedented and unaccustomed manner by going out without warning and remaining out of touch for several hours. I can neither explain nor justify what I understand to have been a panic attack, and I wish to apologize most profusely to all those who suffered as a result. This health issue has been taken care of and treated with the necessary medical support. I confirm that I am in good health, and am fully capable of performing my duties as a judge.

Justice Gascon’s remarks are laudable. By being open about his personal health, Justice Gascon has reduced the stigma in our profession around discussing depression and anxiety. Two illnesses which affect many lawyers.

In the CBC article, titled “Successful lawyers more likely to experience mental health problems, Toronto study finds”, the writers note that a University of Toronto study compared two national surveys of thousands of lawyers in both Canada and the United States. “In both countries, researchers found a strong correlation between signs of depression and traditional markers of career success. Lawyers holding down jobs at large firms in the private sector, widely considered to be the most prestigious roles, were most likely to experience depressive symptoms.” The larger the firm, the more lucrative the position, the higher the odds that the lawyer suffered from depressive symptoms. This was partly attributed to the skewed work-life balance at larger firms.

Similarly in the New York Times article, The Lawyer, The Addict, Eilene Zimmerman, discusses the plight of lawyers. Her ex-husband’s death from a drug overdose happened, despite (maybe because of) his success as an intellectual property lawyer in Silicon Valley.

Zimmerman indicates that the heavy stress on him and the pressure to compete, meet client demands, gain clients, all contributed to his drug abuse. “The history on his cellphone shows the last call he ever made was for work. Peter, vomiting, unable to sit up, slipping in and out of consciousness, had managed, somehow, to dial into a conference call.”

Peter’s struggle is not unique. Zimmerman highlights a 2016 report from the Hazelden Betty Ford Foundation and the American Bar Association on substance abuse amongst lawyers. “Over all, the results showed that about 21 percent of lawyers qualify as problem drinkers, while 28 percent struggle with mild or more serious depression and 19 percent struggle with anxiety.”

Professional stress contributes to the rates of substance abuse amongst lawyers. The adversarial process of the opposing side constantly trying to “undo your work” only adds to the stress.

Despite the prevalence of anxiety and depression amongst lawyers, there is a culture of silence. Professor Daniel Angres states in the New York Times article that “Law firms have a culture of keeping things underground, a conspiracy of silence,” he said. “There is a desire not to embarrass people, and as long as they are performing, it’s easier to just avoid it.”

What’s even more troubling is that that the deterioration of lawyers’ health often begins in law school. Zimmerman points out that law students tend to shift their focus in law school. They shift their focus from the value of helping people to extrinsic factors. These extrinsic factors include: grades, honours and potential career income. However, the value of grades, honours, and income have little influence on a lawyer’s overall mental health. In response, law schools are starting to address improving the mental health of their students.

Similarly, as a profession, we are just beginning to break down the “conspiracy of silence” around mental health. I admire Justice Gascon in contributing to the dismantling of this deadly silence.

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