Revenge porn suspect gets second chance
Court set aside original ruling so defendant can present arguments
One year ago, a Toronto court ordered a man who posted a sexually explicit video of his ex-girlfriend to a porn site without her consent to pay damages of $141,708.03. The precedent-setting judgment opened a new legal path for victims of so-called revenge porn in Ontario and was made after four years of legal wrangling during which the man, who can be identified only as N.D., refused to put forward a defence.
Now the courts have decided N.D. should get a second chance.
The judgment has been set aside and the case reopened so N.D. can present a defence and the case can go to trial.
The plaintiff, known only as Jane Doe 464533, was denied leave to appeal the decision to reopen the case earlier this month.
“It takes us back to, essentially, square one,” said lawyer Molly Reynolds, who is part of the team representing Doe.
It could take another four years for another decision to be made.
“The plaintiff began this action not only to try and exercise her rights and protect her right to privacy, but also to try to show there is a way to hold people accountable when they disclose intimate images or videos without the subject’s consent. She really wanted to give a voice to other women in this situation, that you don’t just have to be quiet and ashamed about it,” Reynolds said.
“It takes a lot of courage and a lot of fortitude to get this far and then realize how far a road it is to continue down.”
Still, Doe’s attempt to break legal ground has not been in vain, Reynolds said. The original landmark judgment by Justice David Stinson has not been overturned, and the new legal framework he devised and his analysis of the harm caused by the non-consensual distribution of intimate images still stands, she said.
“I think it will be helpful to other cases as well as this case.”
It is not contested that N.D. posted the video to the porn site. He can only be referred to by his initials to protect the identity of Doe.
A court will need to determine again what he is legally liable for and how much any damages should be. Stinson found him liable for breach of confidence, intentional infliction of mental distress and invasion of privacy. Justice Grant Dow’s reasons for his September 2016 decision to reopen the case had not been made publicly available by Tuesday.
“Even though it may seem like the defendant is getting a second chance and doesn’t deserve one, people need to look at the bigger picture. Our law should develop when all the evidence is presented and tested by the courts with all the parties participating,” said Dhiren Chohan, the lawyer representing N.D.
“It is actually in the interests of justice that the matter should be heard on its merits . . . I think the prejudice of delay is outweighed by the sheer importance for the courts to establish proper decisions and proper procedures for other litigants to be able to assess to see if they want to go through the process Jane has gone though.”
Doe’s lawyers argued that reopening the case would cause psychological harm and prejudice to the young woman, who was 18 when the video was posted in December 2011 and is trying to recover and move forward with her life. It would also send a message to defendants that they don’t need to take these claims seriously and discourage plaintiffs from pursuing litigation, they argued.
In denying Doe’s lawyers leave to appeal Dow’s decision, one justice disagreed reopening the case would discourage plaintiffs and found that the significant legal conclusions that may result from the case would have more weight after a hearing that includes both sides. A statement of defence must be filed by Jan. 29.