Canadian Lawyer

44 J U L Y 2 0 1 6 w w w . C A N A D I A N L a w y e r m a g . c o m only because I haven't read or discovered it yet; you were the first one to walk into it," says Dantzer, who adds the tort can't be made out if that's the case. "The breach of confidence [has to be] really more of the very personal and private nature. If it ends up being public domain, then I don't think that because you told me before I realized it myself it would make it a breach of confidence." The information also has to be impart- ed in confidence, such as a co-worker sharing something personal and asking that you keep it to yourself. "If you have naked pictures of me or I have naked pictures of you, you'd have to establish that you didn't want those pictures to go out," says Dantzer. "It's possible that some- one would say, 'Yeah, send my pictures out as much as possible because I have a beautiful body, I want the world to know about it because that could lead to some opportunities for me down the road,'" he continues. "So you need to establish that there's an obligation of confidence. Some- thing between us, either our relationship or something said expressly between us, says, 'OK, Ian has told me this but it's to be kept in confidence; it's not my information to spread in the world.'" In Doe 464533, the appeal court referred to the relationship between the plaintiff and the defendant when it decided the plaintiff was in breach of confidence. Stinson said the two had a personal and romantic relationship for some time, and the plaintiff shared the nude video with the defendant on the basis of that relationship. "The plaintiff 's decision to send the video was premised upon the defendant's assur- ance that he alone would view it. His deci- sion to share it publicly was a clear breach of the terms upon which it was communi- cated to him," wrote Stinson. The third requirement of the tort is that disclosure of the private information causes some type of harm to the person who trustingly shared that information. That harm can, of course, become exacer- bated if the news is shared via social media for a broader audience to see. "You might tell me, 'Ian, I am an alcoholic or I am a drug addict, really suffering with it. I need your help with it.' And [if] I go and post it and say, 'She's an alcoholic; she's a drug addict,' that would cause . . . you damage obviously and impair [your] employabil- ity," says Dantzer. "That might lead to the tort arising." Alan McConchie, a privacy and libel lawyer at Vancouver's McConchie Law Corp., says there has been "some toe-dip- ping" in breach of confidence related to personal matters in B.C. In 2005's M.S.L. v. H.R.G., the British Columbia Supreme Court was asked to make a finding of breach of confidence in a case where a woman alleged her former husband told her friends and former employer that she had been providing escort services. She alleged her former husband also revealed she had HPV in an online bulletin board for escort services. In that case, the court declined to award pecuniary damages, but it granted the woman $5,000 for the emotional and psychological distress caused by the plaintiff 's breaches of confidence. The court also banned the ex-husband from telling her friends, acquaintances, and former or potential employers that his L E G A L R E P O RT \ L I T I G AT I O N Maximize your clients' intellectual property value Maximizing the commercial value of your clients' intellectual property makes you essential to their businesses. But success relies on your ability to determine which strategies will deliver the most value given the organization's specifi c circumstances. In this new publication, the authors buttress their own considerable knowledge and experience with that of 12 other experts who work with many various facets of intellectual property commercialization. The Business of Innovation: Intellectual Property Transactions and Strategies in the New Economy explores the practical impact and strategic opportunities of the fi eld's expansion in an approachable, down-to-earth style. The authors reveal the opportunity available and prepare you for the obstacles you'll face – from both a legal and business perspective. And you'll welcome practical aids such as fl ow charts and a poster-sized Technology Commercialization Roadmap. AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 New Publication The Business of Innovation: Intellectual Property Transactions and Strategies in the New Economy Martin Kratz, Q.C. Kevin LaRoche Order # 987239-65203 $139 Softcover approx. 180 pages May 2016 978-0-7798-7239-8 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. 00237NO-A60157-CE Untitled-6 1 2016-06-14 4:09 PM

• Cover