Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m J U L Y 2 0 1 6 43 f you can't keep a secret, you might lose a lot more than your friends' respect, thanks to a recent Ontario Superior Court decision that means people could land in legal hot water for gossiping. When the court released its decision early this year in Doe 464533 v N.D., a case involving a man who posted naked images of his ex-girlfriend online with- out her permission, much of the legal fascination centred around the creation of a new tort called public disclosure of private facts. But that decision, for what lawyers believe is the first time in Ontario, also recognized the tort of breach of confidence in a personal context. Until Doe 464533, the tort of breach of confi- dence was typically used in the context of commercial dealings, where damages are awarded if a recipient of confidential information misuses it for commercial advantage at the other party's expense. "I see no rational basis to distinguish between economic harm and psychologi- cal, emotional, and physical harm, such as was experienced by the plaintiff in the present case," wrote Superior Court Jus- tice David Stinson in Doe 464533. "In any event, the possible future adverse impact on the plaintiff 's career and employment prospects arising from the possibility that the video may someday resurface, also demonstrates actionable harm." The ruling was "a new development that the tort should apply equally to personal situations as well as to commercial situ- ations," says Ian Dantzer, a partner at Lerners LLP. Dantzer says the tort may now develop in a way that could see individuals facing damages in more benign cases, where the fault is a broken promise to keep a secret that in turn harms the person who shared the information in confidence. In other words, blabbermouths of the world: Watch out. Cases where the tort is evoked for oral gossip could become more common because the tort is now explicitly recog- nized in personal contexts, says Dantzer. "I think it will grow in use and popularity." David Fraser, a privacy lawyer at McInnes Cooper, agrees and says he wouldn't be surprised if the tort goes on to develop in a way that gets someone in trouble for being a big gossip. "I think it's a valid concern," he says. "Now the door has been opened, we're going to see how wide is that door." Whether the case for breach of confi- dence can be made will depend on a few things, including whether the information in question has the "necessary quality of confidence," which essentially means it isn't already in the public domain. "You may know something that I don't know L E G A L R E P O RT \ L I T I G AT I O N KYLE REED Blabbermouths of the world: Watch out Ontario decision recognizes tort of non-commercial breach of confi dence for publicly disclosing private facts or images. By Yamri Taddese I

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