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Wednesday, July 20, 2016

There's a new tort in town

The following post was written by Chelsea Kennedy, a criminologist who works with me at Butler Wills and Estates Consulting. Though this post doesn't specifically deal with wills and estates, it has the latest news about a new application of law in Canada that you will find interesting. Read on to see Chelsea's discussion of the dangers of gossip!

Just about everyone has gone on a rant about another person. We get upset, lose our tempers, and the blabbering begins. It turns out that this is no longer just an annoying habit.

The Superior Court in Ontario has ruled that a new tort is now in effect, referred to as “public disclosure of private facts”. This sort of tort – or civil wrongdoing – has been around for ages in regards to business. Many companies and government agencies require that their employees sign non-disclosure agreements.

However, this kind of breach has never before applied to personal situations.

It isn’t as simple as suing someone in civil court because they said something rude about you on Twitter. There are a few requirements that need to be met before a person can pursue a case.

For one, the information can’t already be in the public domain. So if you post pictures of yourself on Facebook doing a keg stand, you’ve put it out there yourself and it isn’t a tort for your frenemy to share it. Also, it needs to be of a private nature.

Secondly, the info must have been shared with the intention that it would be kept secret. When someone says “keep this to yourself”, they mean it.

Lastly, there must be some sort of harm done to the person if the info about them were to be shared with the public, whether that harm is emotional or financial. Telling all of Instagram that your co-worker is an alcoholic, that your neighbor is having an affair, or sharing naked pictures of an ex all cause harm.

So before you share secrets that you’ve been told (or overheard) consider the consequences.


  1. I can see the sharing of intimate pics as being a problem but disclosing that someone is having an affair or is an alcoholic wouldn't pass muster. If they are both the truth then there is little that could be done. Unless you are a lawyer or doctor and breaking confidentiality rules then this would not pass a constitutional challenge. If you want to maintain privacy don't tell people your problems...if, for example, a co-worker told me they were attending AA meetings and I spread it around then there is nothing legally that could be done. It isn't libel nor slander on my part if its the truth...they shouldn't have told me.

  2. You're right in that sharing intimate pictures would be an issue, and slander laws do rely on whether or not the info you share is true.

    However, with this new tort, whether or not the information is true is irrelevant. If a co-worker were to tell you that he is attending AA meetings (or you overheard him on the phone with his significant other) and you spread it around, you would be committing this tort and legally your co-worker would be able to take action.

    This tort is in place partially because this kind of situation isn't covered by slander laws. The onus of responsibility isn't on the person who shares the secret - it's with the person who is told to keep it confidential.

  3. I bet this is going to take a few people by surprise if they are hoping to fall back on slander laws!


  4. I'm not sure about Canada but lawyer-client privilege is lost if there is a third party present in the US (in certain circumstances). If I overhear my co-worker on his / her phone that's their problem...not mine. One doesn't have an expectation of privacy in a public space. That would be no different that overhearing two people at the mall or walking down the street. If they have secrets to discuss they should find a better place. I would also argue that if someone blurted something personal out then said "keep this private" is iffy. Would be interesting though. What if, in the example above, someone was at a bar hammering down he drinks and making an ass of themselves and I post a video of that ? Until then it's not in the public domain but the event happened in a public bar ? Their boss sees it and fires them...would they have a cause of action ?


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