New legislation not always the answer: Mandin

An Ontario Superior Court judgment awarding damages to a “revenge porn” victim demonstrates that legislative change is not necessarily the best path to justice, Toronto civil litigator Stephany Mandin tells

In the case, the court awarded $100,000 in general, aggravated and punitive damages to a woman who was seeking a default judgment against her former boyfriend.

The woman claimed damages for abusive behaviour and for posting a sexually explicit video of her on a pornographic website without her knowledge or consent.

Mandin, principal of Mandin Law, says the ruling is a good example of how “common law adapts to ever-changing circumstances” in society.

“Revenge porn is an emerging issue, and it was discussed by the judge who found that in our internet age and the era of social media, the law needs to respond to this potential tort and cause of action,” says Mandin, who was not involved in the matter and comments generally.

In her judgment, Justice Sally Gomery wrote that the plaintiff had also been verbally and physically abused by her former boyfriend who posted the video.

While she consented to the video when it was made, she did not give permission for it to be posted online. By the time she found out about it and had it taken down, the video had been viewed more than 60,000 times.

Court documents show that when she confronted her former boyfriend, “he admitted that he uploaded it as revenge.”

While some provinces either have or are considering revenge porn laws, Ontario does not have such a statute. Mandin says that’s not necessarily a bad thing.

She says one of the pitfalls of rushing into new legislation is making it too far-reaching.

“It takes a significant amount of time, resources, and effort to create legislation, and the issue here is the potential for that legislation to be overbroad in scope,” explains Mandin.

She uses an example of parents who upload photos of their children to social networks.

“What if you post a picture of your underage child in the bathtub? You think it’s innocent, but it could arguably be the publication of an intimate image,” says Mandin. “Now, if there’s legislation enacted, you could get ensnared by the letter of the law, but ultimately it will be up to a judge to interpret whether that picture fits the parameters. The issue is how that legislation is interpreted.”

She points out that cases involving dissemination of explicit sexual images “are going to trickle down to the courts anyway, so I actually think it’s much more practical to let justice run its course.”

“This emerging area of law should be interpreted and analyzed and critically evaluated through the judicial system as opposed to being legislated first,” Mandin says.

She says Gomery’s decision establishes that “It is not necessary for there to be a statute or legislation of this issue in order for it to be recognized as a tort in common law and in the civil system, which allows victims to obtain compensation.

“The court is sending a message that this is something they take seriously and I think we would be better served to have these cases flushed out, and critically analyzed by the judicial system,” Mandin says.

She notes that the Gomery decision — along with an earlier, similar ruling — complements Bill C-13, which offers protection from online crime.

“The conjunctive impact of Bill C-13 and these cases are allowing me to advance claims on behalf of my clients, absent any legislation, and so my pitch would be ‘Let’s see how these go through the system,'” Mandin says.