Privacy Breaches and Revenge PornAll organizations, both owned by a government and private, and both Federally regulated and Provincially regulated, are subject to privacy laws that govern what information they may collect, how they have to store it, and for what purposes they may use it or disclose it. A breach of these privacy regulations can have serious implications for a person, including potential identity theft at a later point in their life, or use of embarrassing information to blackmail a person.
While the law on privacy breaches has been advanced aggressively in the United States, and particularly through the use of class action lawsuits when there have been data breaches by hackers, the law in British Columbia is quite a few years behind in development and also in assessment of damages. The majority of privacy cases done in British Columbia require actual monetary losses – such as if a hacker or fraudster manages to steal money from a PayPal, Venmo, or Cryptocurrency account, or actual emotional harm – such as a rogue employee obtaining unfavourable information about you as a result of their position at a large organization (i.e. a hospital) and sharing that with friends and family, or blackmailing you and threatening to share the unfavourable information with their friends and family.
A special type of privacy breach exists for cases commonly referred to as “revenge porn”. Former intimate partners may have video or images that they recorded in private, with or without your consent, that they either threaten to share on the internet, or have shared on pornographic sites. Unlike other privacy cases, an individual is not subject to the laws regulating privacy that apply to all organizations, and the Courts use a body of law called “common law”, or judge made law, to provide a remedy for this type of harm. Revenge porn can sometimes be prosecuted as a statutory tort under B.C.’s Privacy Act, or as the tort of “inclusion upon seclusion”, “invasion of privacy”, or “intentional infliction of emotional distress”. This is a relatively new area of law and so still has lots of room to grow and expand.
The difficulty with many privacy breach and revenge porn cases is keeping documents as the videos, images, and other information, can be taken down as quickly as they are put up. If they are taken down before a backup can be created, your odds of succeeding at trial have dropped dramatically. The scope of publication is also relevant to the amount of damages that can be taken. Accordingly, taking a digital recording, such as screenshots, and creating multiple backups should always be a first step.
If you have correspondence, such as through a social media or messing app, text, or e-mail that can be used to prove the motivations or identity of the person who committed these acts, then these documents must also be backed up and securely stored. Some apps, such as SnapChat, present more of a challenge than others such as WhatsApp that has a daily cloud backup.
If the privacy breach occurred at the hands of an organization that is subject to privacy legislation, then each organization will have a process for you to find out the scope of the privacy breach and the reasons behind it. These are often called Freedom of Information / FOI requests, although each piece of legislation actually has a different title and a slightly different name. These requests usually get processed in about two months and provide you key information to determine the viability of your claim and will assist in resolving your claim, either through negotiation or trial.
If you are suffering emotional distress as a result, then seeing a professional such as a counsellor is imperative. Similar to personal injury files, it is important to keep what is colloquially called a “pain journal”. Contemporaneous records showing how it impacts you on a day to day basis will likely be considered reliable and necessary evidence and will help justify a larger award.
Our Privacy Breach Lawyers assist clients whose cases can be tried in British Columbia. This usually requires the offending party to be in British Columbia or the actions to have occurred in British Columbia. Unfortunately, it is not enough for the victim to be in British Columbia.
Our Privacy Breach Lawyers’ primary focus will be to ensure that the privacy breach stops and cannot be repeated. If there is any images or videos still on the internet or social media, we have experience shutting it down and also obtaining injunctions to prevent the further distribution of any content you do not want shared.
After there is an assurance that the offending actions have stopped, our involvement typically shifts to due diligence in determining the feasibility of a claim. If the offending party is an individual, then they need to have either assets or a sufficient source of income in order to pay able to pay off a judgment instead of going bankrupt. There is often little point to pursuing a claim that will result in an empty judgment.
We will then determine the best type of process to use to get compensation for your pain, suffering, actual out of pocket expenses, and injury to dignity. Privacy cases can be subject to an arbitration and jurisdiction clause if it as a result of a corporation’s negligence which may be challenged. Privacy and revenge porn cases can also be brought in Small Claims Court, however the monetary limit, presently at $35,000, lack of discovery, and lack of ability to get costs, makes that option generally unattractive. Another option that exists for privacy cases involving federally regulated bodies (i.e. banks and telecommunications companies) is proceeding through the office of Privacy Commissioner and then subsequently to the Federal Court for an award of damages under s. 16(c) of PIPEDA – however the Federal Court typically has not given large awards for privacy breaches and previously were only awarded in the most egregious of cases.
Privacy cases and revenge porn cases however rarely resolve prior to a trial being imminent. This is in part because the law on the amount of damages are not well settled in B.C. and so there will be a big gap in the number demanded by the Plaintiff and the Defendant, and also because these cases rarely are covered by insurance.
After you hire us we will take steps to stop the further spread of any private information, including any video or images. This may occur relatively easily, or it may be nearly impossible. For instance, TheDirty.com has no easy nor cheap way to remove unfavourable private information. If the breach occurred in the hands of a larger organization, they will likely voluntarily impose tighter restrictions to your account information.
After determining the feasibility of a court proceeding to recover any damages, then we will proceed to commencing Court action, particularly if the offender is an individual acting on their own behalf. We will commonly seek either an anonymization order, or a sealing order, so that the privacy breach does not get compounded.
We will then move your file along a relatively well defined path. After initial filings are done, documents in the hands of the Defendant are obligated to be produced which can include digital documents with their metadata still intact. Typically after document discovery is completed you can depose the Defendant in a process known as an examination for discovery. This process accomplishes two very important goals. First, as the Plaintiff you are still obligated to prove your case and sometimes that can only be done by an admission by the Defendant (or an adverse inference drawn). Secondly, it commits them to one version of events and if they waiver from that position at trial, you can contradict them and establish that they are a stranger to the truth.
Following examinations for discovery, if there were sufficient admissions made, then we can proceed to try your case without you ever having to step inside a courtroom in a process known as a summary trial. Your evidence in such a procedure will be given by way of a written affidavit. Alternatively, a conventional trial may be more appropriate, particularly if the witnesses you need to advance your case are unwilling to voluntarily provide their evidence.
Some privacy breach and revenge porn cases can be done on a contingency basis – however this typically requires a strong case and a Defendant that has assets in B.C. Most cases at early stages, before knowing if a Defendant can afford any judgment made against them, are done on an hourly basis when quick steps must be taken to remove content and prevent further privacy breaches. Due diligence to determine a Defendant’s ability to pay any judgment is also done on an hourly basis.
In addition to hourly, some cases can also be done on a hybrid, where there is a reduced hourly fee and a reduced contingency. Given the novelty of this area of law, we typically do not offer flat fee services as the time that will be needed to resolve your matter through a trial cannot accurately be predicted.
Contact us either at (604) 259-6200 or using the form below for assistance with Privacy Breaches and Revenge Porn.
The foregoing provides legal information and does not constitute legal advice. As an analogy, legal information are equivalent to learning the rules of chess, and legal advice is the tactics and strategy that goes into winning a game. Lawyers are trained to give valuable advice that is specific to you after learning about the details of your case. Readers are cautioned that they will rarely achieve the best outcome for their case without actual advice. A consultation is often the best next step to take.