Ashley Csanady | July 26, 2016
A Canadian woman who cannot legally be named has been awarded $100,000 plus costs in what's considered the first civil case over revenge porn.
TORONTO — The six-figure award in a case widely heralded as Canada’s first successful civil suit against “revenge porn” could be tossed out.
The defendant, known only as N.D., is seeking to have the January decision set aside because he was not able to afford a lawyer to defend himself — he was a full-time student at the time.
The victim, referred to as Jane Doe to protect her identity, was awarded more than $140,000 in damages and costs for her suffering after N.D., her former boyfriend, posted an intimate video of her online without her permission.
The case was back in court Tuesday, but the proceedings were covered by a publication ban.
Both N.D. and Jane Doe were 18 in the fall of 2011 when he pestered her for an explicit video, according to court documents.
They had dated, and after months of him asking and sending her his own explicit images, she sent the video. He then posted it to pornhub.com under the title, “college girl pleasures herself for ex-boyfriend’s delight.”
After Doe found out about the post, she contacted N.D.’s mother, who got him to take it down — but only after it had been online for three weeks.
Both N.D. and Doe agree this happened. But now, N.D. wants the court to set aside the judgment rendered in his absence.
This is not the same thing as an appeal, which would question the facts of the case or the judge’s reasons in the ruling.
Instead, N.D. is asking for a second chance to fight his case, one as seen a landmark victory for lawsuits involving “revenge porn,” the non-consensual posting of sexual images online after a relationship ends.
N.D.’s lawyer, Dhiren Chohan, is arguing his client was denied access to justice because he couldn’t afford a lawyer and the precedent-setting nature of the case requires a full defence.
He also says the six-figure award was too high for several reasons, including the fact Doe shares some responsibility for the video’s existence.
N.D. “states that (Doe) provided the video on her own accord. This is not a case where the defendant hacked into her computer, found the video and posted it online,” the factum says.
“Furthermore, there is an element of contribution to her own damages … In this respect, the defendant asserts that she is the author of her on (sic) misfortune to a degree.
“She ought not to send such videos, as there is always the risk of it becoming public.”
The award was also too high because Doe was seen “partying” and “enjoying her life” after the incident, the document argues.
The damages were based on her depression, anxiety and panic attacks after she found out the video has been posted online.
She ought not to send such videos, as there is always the risk of it becoming public.
The precedent-setting nature of the case could create a “new and dangerous area of tort law with respect to an invasion of privacy in the new electronic era of ‘sexting,’ ” the factum adds.
Justice Grant Dow of the Ontario Superior Court, who heard the motion Tuesday, must decide whether N.D’s circumstances fit the civil rules for setting aside the case, not whether Justice David Stinson’s January ruling was valid.
In her factum, Doe’s lawyer, Donna Wilson, said setting the case aside would send the message that “default judgments (those awarded in the absence of a defendant) are not worth the paper they are written on.”
She also notes that, even though N.D. admits to posting the video, he “ does not understand or acknowledge what he did was wrong.”
The posting of intimate images online against someone’s will became an offence under the Criminal Code in 2014.
In the age of nude celebrity photo leaks, webpages devoted to revenge porn and cyber-bullying, Wilson argued the precedent this case sets should not be undermined.
“If this decision is set aside, it will not only cause considerable distress, delay, and cost to Jane,” her response states, “but will also devastate all the women whose nude photos and sex videos have been misused, including those who are fighting to have images taken offline.”
The judge reserved his decision.
Commentary by the Ottawa Mens Centre
Those who don't have a lawyer often give up, they don't have any money to take away but fail to comprehend the prejudice of an order made without any representation of the respondent's position.
This article fails to explain what the possible remedies are.
Setting aside the order will be necessary in order to order a new trial, but the order could be left intact, without prejudice to the complainant in order to prevent for example the money being spent, if it exists.
This application deals with what Feminists are calling "on line violence". It is on line but regardless of how damaging it is, it is not "violence".
It might threaten violence and then it would be threats. It may not be physical harm but may cause incredible psychological damage but that is not physical violence and needs to be identified as it may in fact be more damaging than physical violence.
It comes down to a lack of appreciation to using the right description to describe the acts complained of and, to make sure that everyone understands what is going on.
It appears to be a 50/50 chance on the surface of this case being reopened and it will depend on the judge and which side of the bed he or she got out of.
Legal issues generally take a second place to political issues in Canadian courts and this case is most probably going to be a platform for political statements rather than legal statements with extreme feminists hogging the front page of the media.
Ottawa Mens Centre