Howdy, everybody.
Give me a second to sit down.
Thank you all for being here.
I really appreciate it.
My name is Sam Feifel.
I'm the Publications Director here at the IAPP.
So it's my job to send you lots of emails with lots of stories in them.
And hopefully you don't find them too bothersome.
And you find them relatively useful and entertaining.
Otherwise, I'm failing at my job.
I'm also the programmer of the conference along with my programming team.
So if the conference is not up to snuff, it is my fault.
So please come and blame me.
But also one of the things that I get to do with my programming power is to invite really interesting people to come and talk with me in these conversations in privacy.
So I'm really happy to have Donna Wilson here with me.
Hi, Donna.
Hi.
Just make sure your mic works okay.
Looks good.
And Donna is a commercial litigator who is not one of our normal sort of privacy circuit talkers.
But I came across her because she is the litigator who won the...
I'm going to call it non-consensual pornography case.
In the United States, we often call it revenge porn.
And she successfully helped a woman sue somebody for having committed this crime.
And it goes back to August of 2011.
A relatively young woman, 18 years old, was sort of being sent the sorts of pictures that boyfriends and girlfriends send each other from her boyfriend.
And her boyfriend said, send me one back.
She didn't really want to.
But eventually, after much cajoling, she finally did.
And that was in August.
And then in December, she discovered that what she had sent to her boyfriend had been posted on the internet.
And not on one of the sites that many of you frequent, I'm guessing.
But no shame if you do go to Pornhub.com.
That's not my business.
But I'm guessing you wouldn't really be too happy if you found naked photos of yourself there that you hadn't put there on purpose.
And there was a lot of distress, as you might think, from this poor woman.
And they started looking for a lawyer to kind of remedy the situation.
And Donna put together this wonderful factum for the case.
And as a father of a 12-year-old daughter, I went into sort of a blind rage when I read it.
Because the first time they asked for a lawyer, they heard back that their, quote, whore of a daughter should not have taken the photos in the first place.
And it's like, you know, you want to go find that person and physically injure them.
But that's not what we do.
We have lawyers who can, you know, sort of reputationally injure them.
So Donna, why don't you tell people, how did you come to this case?
How is it that you got involved?
Okay.
Well, first of all, I like how you tell the story.
Because that's something that's happened a lot after the cases.
People have said, I have daughters, thank you.
And one of my friends, we were talking about the weather, and he handed me a picture of his daughters.
And I said, why are you handing me this?
Sorry.
I was like, they're adorable.
He's like, because I saw your case, and thank you.
So that's kind of been a really neat thing.
But so, you're right.
When they first went looking for a lawyer, they emailed a private lawyer referral service.
So it wasn't a lawyer.
It was a business that is designed to refer to lawyers.
And they got that email back, and then they went to the Law Society Referral Service, which is our regulatory body.
They have a service to help people out with lawyers.
And it's kind of a case...
I'm sorry, I don't know if I'm...
It's because your mic is pointing the wrong direction, unfortunately.
It's my fault?
Yeah.
Because he pointed at me.
I thought maybe it was my fault.
That happens.
The mic is pointing downward, which is difficult.
There we go.
I'm used to speaking in court where the microphone is put away.
I think you're cooking with some Crisco now.
Okay.
So, I think it's still...
Okay.
So, the Law Society Referral Service is a place where people tend to end up when they don't have connections to lawyers.
And you take a lot of cool calls, and it's not the best place to get clients.
But that's where they ended up because they didn't know where to go.
And they actually...
Someone at the Law Society Referral Service, I think, sensed the importance of that issue and sent them to a prominent lawyer at a prominent law firm who basically told them they had no case and said it was their fault.
We're not going to mention that law firm, right?
No, no.
Because we're not into public shaming.
Not even whispering because I think that that's like a one-off.
And it's also kind of a generational thing, I think, that the person thought that...
I don't know.
With older people, they think that this is the person's fault who did it a lot and the conversation has shifted a lot since then.
So, that's a good thing.
So, they went back and they said we need another lawyer because we didn't get that one and we need a feminist.
And I think that someone at the Law Society Service, either they knew me or they just saw that I was a newer lawyer and I was female and kind of based on stereotypes that maybe I would take it.
I love that.
A young female lawyer must be a feminist.
But, you know, we can't find anybody else.
Or that I would understand what she felt and all that.
And they came to me.
And at the time, the law really wasn't there because Jones and Siege hadn't come out yet, which was the first privacy tort in Ontario or in Canada.
And...
But there were other torts that we could hang our hat on and other causes of action.
And I just said to them, well, if you can't sue for this, what can you sue for?
And...
Did you feel like you had a case right out of the bat?
Or did you find...
Did you feel like you were going to take it and figure it out later?
Or did you have a plan in place when you saw it?
I knew it was definitely a case right off the bat.
Like, I knew that liability would be there.
But at the beginning, I had different thoughts on damages.
I thought that we might be sort of limited to something much lower.
But then towards the end, I really believed that $100,000, which was...
We elected to go under a simplified procedure for strategical reasons because it limits the amount of time for discovery.
And we didn't have a lot of time or money.
And then, before I took it to court, I thought about, you know, it could be more than $100,000, but it didn't matter because the guy had no money anyways.
And I was confident at that point that it would be $100,000.
But back in 2011, I was thinking more like $25,000.
So, you know, what I think this is really interesting is, you know, to cut a long story short, you know, she won and we're going to talk about how she won.
But what drew, you know, my attention is, you know, we have this really difficult issue in establishing privacy harm.
And harm is always about, I lost money, or, you know, this painful thing happened to me.
And reading through your argument, I loved the way that you argued that, you know, yes, we can prove that there has been this, you know, kind of physical harm.
And she had these, you know, really difficult psychological issues and she had to drop out of school and...
She didn't drop out of school.
She just deferred her exams.
Deferred her exams.
I'm sorry.
And, you know, she had these panic attacks.
You know, she really had pretty obvious distress.
But I love the way you argued that it didn't matter that there was distress.
It was the act itself that caused the harm.
And tell me a little bit how you kind of came to that argument.
Okay.
So, one thing that I've seen a lot of people comment about the case is that the facts here were particularly egregious, but they're actually not.
It's actually very, very typical what she went through.
It's actually so typical, it's almost strange.
It's the exact same thing and it's often university students and they have to defer their exams and it often happens around Christmastime.
Christmas brings out the best in the worst in people.
There's a non-consensual pornography boon around Christmas?
Yes.
I did not know that.
I didn't know that either.
I've also found Christmas to be a good time to settle cases when you're on the plaintiff's side because defendants are softer.
So, it can be a good thing and a bad thing, but when it comes to that, I don't know why, it brings up feelings, right?
And so it often happens around Christmastime and then they defer their exams and then they have panic attacks, but they're not stereotypical panic attacks because they don't build off of themselves.
So, the harm is that effect, but then it's also just knowing that your picture's up there and your body's being exposed in a way that you didn't consent to and having a lot of people look at it when it's on a pornography website or if it's on your social media site,
which I've seen happen quite a bit.
It doesn't stay up for long, but still, something can be up on your Facebook page and 250 people who you know can see it.
So, knowing that, that is like a sexual violation and then also the fear of what's that going to do for my future and that's what causes a lot of the panic and the mental health issues because they've seen what's happened to other people and other people have ended up killing themselves,
losing their careers, losing their children and they worry about that, obviously.
Yeah, so I think one of the things that is interesting too, though, is I can envision a woman who is really comfortable with her body, a woman who is very strong-willed, is not going to be bothered by this sort of thing, but still does not want this photo to be online.
So, this woman is not having panic attacks.
She's confident that she can continue to go about her business, but this should still be actionable, right?
I shouldn't have to say, oh, I was crying in a puddle to show harm.
Yes, I think so and I think that it's like similar to trespass.
You don't have to show harm, you just have to show that someone stepped on your property and, I mean, that's a very old-fashioned tort and you don't actually sue about that anymore as far as I know.
But that's kind of where it all started and really who cares about your property when compared to your body?
I think your body is a lot more important and I think a lot of the harm can be presumed and I think that even with people who are very open and whatever, like even if you were an actual porn star, if somebody records you in a sexual act or naked or whatever,
that's still not okay because you didn't consent to that and it still affects people.
And I've had some women come and share their stories with me who are quite a bit older and more relaxed about everything and they say, oh, well, I didn't have the same problems that your client did, I didn't suffer all of that psychological harm.
But then they'll say, I really enjoyed reading Decision but I couldn't read it all at once because it brought back all the feelings.
So, it usually affects everyone no matter what their views about their life and their body are.
Sure, and I think also that in my mind, it starts extending to all these other areas of privacy law.
So, again, we're always kind of focused on what the harm is of me losing my identity details to some hacker or the harm of someone snooping on my healthcare information.
It's not so much the...
I think when we talk about non-consensual pornography, there's sort of this obvious harm because everybody can put themselves in a place where someone took a photo while I was hopping into the shower and posted it online.
Like , disaster.
There's nobody who's going to be happy about that situation.
But then we sort of have a way of saying, well, if my health details are up there, people know that I had shoulder surgery six months ago, not as big a deal.
But really, it's kind of at the same point.
It's the same lack of control.
We had this thing that we had control of, whether it was the image of our body that we wanted to portray or the record of our health that we wanted to portray or even the record of employment that we wanted to portray that was kind of taken away from us.
Talk a little bit about...
when we've been on the phone, the violence of that act, I think, was something that you argued kind of persuasively as part of the case.
So, something that has been very, very important in Canada is that we have passed a new criminal offense that it's similar to child pornography, right?
You can't have child pornography whatsoever.
And with adult pornography, it needs to be consensual now.
And the act only got passed...
well, it came into force in March 2014.
And there hadn't been a conviction under that new provision when I went to court.
There has been since.
And I think we were actually in court on the same day, which is interesting.
But I had to look to the child pornography case law there.
And there was similar cases because...
sexting between same-age peers with teenagers.
And the court there looked at the social science research and they found that it was often like young men and young women and the young men...
and this is what I found in my experience since I've been meeting with people since.
The young man...
the teenage...
the teenage boy pressures the teenage girl.
She doesn't want to make something, but then she does because he pressures her so much.
And then he distributes it amongst his peers or whatever.
And the court there recognized that as a sexually violent offense and said that it weren't a custodial sentence for general damages...
purposes to...
sorry, not general damages...
general deterrence to deter others not just that specific person.
You guys don't throw...
you guys don't just throw people in jail here in Canada.
You gotta do some stuff to get that custodial.
Yes, and that's a big deal.
And the case where someone was prosecuted under the criminal provisions amongst adults, he was sentenced to 90 days which is a pretty long sentence.
There were a lot of mitigating factors.
Once you get to liability, what they did was wrong.
There's no excuse for that.
But then you look to their entire life.
He was normally a good person.
When he realized what he had done, he was immediately remorseful and he took it down.
And he was drunk and high when he didn't really know what he was doing.
But still, 90 days in jail.
It's a long sentence for Canada.
Well, you know, in the United States you get that for like jaywalking.
People go to jail all the time.
But I think that I want to get into that kind of cultural difference too.
In the United States, the First Amendment is king.
People use that argument that they can post anything they want because it's freedom of expression.
Usually when non-consensual pornography cases get tried, it's really a copyright thing.
It's an intellectual property thing.
And they argue about who has the ownership of that file.
And that's how often those things are adjudicated.
And now they're sort of putting in specific revenge porn laws, as they're called, in the United States.
I think there's about 12 states that have put them into place.
But that's the U.S.
We're very litigious and we're very sort of property based.
Then over in Europe you have privacy is much more about dignity and human rights and about what it is to be a person.
And Canada is generally thought of being sort of somewhere in the middle.
So as you kind of think about how this goes forward, how it will kind of shake out what is considered non-consensual pornography versus what's just, hey, I sent it to you and I gave consent.
How do those kind of feelings between sort of property rights and dignity kind of play themselves out in this world?
Okay, there's a lot there in that question.
It's a long question.
I do as well.
So with the interesting thing about this case is that he pressured her to make a video and she made it by herself .
And so under Canadian copyright law we had a slam dunk for breach of copyright and I pled that in the statement of claim but I actually left it on the table in my factum, which is kind of nuts when I think about it because he leaves this slam dunk thing on the table but there was so much going on in the case and there were so many legal issues to deal with and we didn't have time and we didn't have money so I just had to make a lot of strategic decisions and I decided with the breach of copyright,
even though there are statutory damages and they were guaranteed, I thought that's not what the case is about and let's focus on what it's about which is breach of privacy.
And so it fell under the of confidence and then you look to the jurisprudence about intrusion upon seclusion but it didn't fit in there because it focuses on the invasion of the privacy so it's more when people are surreptitiously recorded or when someone
And that's kind of, I think, why Justice Denson decided to create that new tort, so they should all fall into one tort, because the cases where people hack and spy are the same, to me, as when they're entrusted with these photos and videos and they put them online.
But yes, it's very... the whole decision is guided, and you know, most court decisions I think are guided by the cultural norms and the jurisdictional... the country that you're in, what the tradition of the case law is, right?
And I think that it was very much guided by that.
And there's a big difference in Canada versus the United States, and I've always found this, like the entire time I've been practicing, is that if someone contacts me and they want something taken down, you get it taken down, easily.
You don't actually go to court.
Whereas in the United States, they're more brazen and, oh, I can do whatever I want to do, like Hunter Moore, who's in prison now, thankfully.
And there's some websites that, in the United States, that won't take things down, and when there's Canadian people on those websites, that's going to be an issue where we can get over those jurisdictional boundaries because it's a criminal offence, which is really the most important thing.
I find it interesting that my case has gotten so much attention and the criminal provision hasn't gotten as much, I feel, from talking to other people as well.
The fact that it's a criminal thing is the biggest issue.
But it was definitely in line with Canadian charter jurisprudence and the criminal law and the cultural stuff.
And when I was working on the case in November, I had set the original court date for November, but then I was having trouble kind of figuring out how to put it all into place.
And I saw Justin Trudeau on TV say, oh, it's 2016, when he did the gender-neutral cabinet.
And I thought, yeah, it is.
Just watch me.
Well, talk a little bit more about that because it's not like lawyers were lining up to take this case, right?
Is the reason that this is getting attention is because it took someone like you to... this was not necessarily in your financial interests, right?
You did this a little bit about the love of the case because it was important to you.
Do you feel as though there isn't that sort of law enforcement or parliamentary or whatever it is impetus to make this a big deal and that the tools are actually there for them to really sort of clamp down and make this a criminal issue?
But instead, we've got relatively young lawyers sort of being asked like, hey, can you take this case?
Why is that happening?
I guess that's kind of a millennial thing because the economy is not all that great right now.
And we have the same problem in the legal profession in Canada that you have in the States, but not as bad.
There's a lot of young lawyers who are unemployed or underemployed and I was running a very bare bones practice.
And it wasn't really that this case... I learned a long time ago to not take files that aren't going to at least make me some money, right?
But this case, I just couldn't not help her.
And I find it disturbing that we expect the younger lawyers to pick up the slack when we need these issues being solved.
And with the police, the police have the tools because they have been working on child pornography cases and they know.
They say sometimes, oh, we can't track a person down because they're bouncing it off a proxy server, yada, yada.
I'm not a techie person, but I know that that's garbage.
They can still track the person down.
And I've actually been getting referrals from the police.
You've been getting referrals from the police.
Why are the police not prosecuting?
I think police suffer from empathy fatigue sometimes because they have so much coming at them and they have limited resources.
But at the same time, sometimes I'm like, okay, so send it to me because I have unlimited resources, you know?
Definitely.
I would say that your office versus the Royal Canadian Mounties, probably equal resources.
Yeah, no, not at all.
It's difficult with these cases because a lot of them are young university students and their parents don't understand that they need to invest in taking the steps to protect their reputation and protect their future, right?
So it's hard to get the retainers in order, but I have a lot of ideas and we're lining things up and there's a lot of lawyers who are interested in the issue and we're working on it.
But I think that the police should be taking a much more active role.
And I find it disturbing.
I've had women tell me, oh, so the worst kind of revenge porn is where, and I don't like the term either, I'm just resigned to it because it's kind of caught on, is where you have your explicit photo and then a regular photo and then your name and contact information and even address.
And I've had women contact me and they've said, this is online and it's been online for years and I asked the police to help me and they told me there's nothing they can do and that it's not a crime.
And it's been a crime since March 2014.
So there's an education of the actual police forces that needs to be done.
But also, you mentioned that education about protecting your reputation and protecting your online profile.
And the bells, I was a women's studies student in university and the bells started going off with ideas of, oh, if you just weren't wearing that dress, that sexual assault wouldn't have happened.
Or if you hadn't gotten drunk at that party, you wouldn't have been assaulted.
You know, protecting your online reputation and protecting your online profile, it sounds a little bit like, well, if you just hadn't taken that explicit photo, this whole thing wouldn't have happened.
It's your fault.
How do we sort of protect against that?
How do we sort of balance educating with also telling women, you know, if you want to be able to send a naked photo to your boyfriend, you should have that right.
You should be able to express yourself to your boyfriend in that way without worrying that he's going to post it online on Pornhub.
So again, there's a lot in that question as well.
But exactly.
And there's an interesting conversation that's been going on lately, and I find it very refreshing and nice that we're talking about these things.
But it's such an old and boring story, like, what were you wearing?
If you're a woman, then you understand that you walk down the street and you get yelled at and sexually harassed and assaulted, like, multiple times, like, almost every day.
And what were you wearing?
Like, I know, like, I'm wearing a dress right now, and I've dressed feminine, but I've been sexually harassed in basically a hazmat suit.
Like, size 38 coveralls, respirator on my face, head covering, hair, everything, rubber boots up to my knees.
How do you even know I'm a woman so that you can sexually harass me when I'm wearing that?
So it's, to blame the person about it, it doesn't make any sense to me.
And also, I grew up with, like, after school specials and saved by the bell.
And it's more about respecting the people around you and protecting your friends and stuff like that.
So I think that we can teach people to not sexually assault each other.
And I've seen, I've seen lots of young men say, you know, that girl's too drunk, like, don't go there, let's get her home safe.
So I think that that's kind of the attitude that we need to encourage in people, and that's the right direction to go.
And with these cases, there's a lot of blaming because it's a very, very new thing.
And, you know, I grew up in the 90s, I graduated high school in 2002.
When I graduated high school, there were no digital cameras, we didn't have smartphones, we didn't even get smartphones until law school, we were all excited to get them when we got our first summer jobs or our articling jobs.
So of course, we never did that.
And of course, the baby boomers and Generation X never did that, because how would you?
Like, I, when I wanted to make a video, I borrowed my dad's VHS camcorder.
So it's not something that everyone understands.
But, and when I first heard about sexting, it was amongst teenagers.
And then I saw young people do it.
And I've since seen old people do it who are baby boomers or whatever, who are divorced and they're dating again.
We have politicians in the United States who tweet each other photos.
Anthony Weiner.
The appropriately named, yes.
Actually, interesting in Canada, a lot of our rape laws are very appropriately named.
Like there was this one called Sans Regret, which means like, I'm not sorry, basically in French, or Sans Regret.
So, but Anthony Weiner, that brings up an interesting issue, because can I, can I be, I can like swear and stuff?
Well, you know, Toronto...
I want to say like the F word.
Okay, so nobody cares about dick pics, unless they are ever evidence of infidelity or like sexually harassing your employees.
And in those cases, it's not about the pictures.
No one cares about the pictures.
It's about things that the person would get in trouble for anyways.
And so that's the interesting issue.
And I've only spoken to one man and it was someone who's embarrassed of his sexuality.
And that's usually, especially in Canada, since we do have an exception culture here, and especially in Toronto, if you're gay, you can come out.
So to be the victim of that, it would be more teenagers, or older men who are never going to come out.
So that's just a statistically smaller group, but it's mostly women who get victimized about this.
And if it weren't for those like puritanical views that we have in North America, then they wouldn't even be harmed from it.
But it's because of those...
So that is the very idea.
So what I think is really interesting is that statement right there, because it really isn't about sexuality, or nudity, or nakedness.
Ultimately, it's about power.
So if we lived in unicorn land where men and women were totally equal, a lot of these issues would be different because women in the privacy industry were actually just about 50-50.
But for instance, we did a salary survey.
Even though the privacy industry is made up of 65% women, you women make about $10,000 a year less than your male counterparts.
For me, that's what a lot of this non-consensual pornography is about.
It's about a continuation of women being in this less powerful position.
Because I know as a man, I would also feel harmed if someone put up a naked photo of me.
But for some reason, that doesn't happen.
Women don't do that.
And if it did happen to me, I think a lot of people would laugh at me and be like, you know, it's a big deal.
For women, it's really tied up in how, for some reason, your professional reputation is tied in with some past sexual history issue that would never be an issue for me.
So as a man, if it came out that I'd had many, many sexual partners, maybe the boardroom hiring would give me a high five.
Whereas with women, that's potentially an issue as you're being hired.
So you kind of danced around it a little bit more than I was expecting you to, but do you think part of why it's not a criminal issue is because these police departments tend to be male-dominated and they're not taking it seriously enough because they can't empathize with the women in question.
They haven't looked at the power issue.
Yes, definitely, that is an issue.
And it was really great for me.
I got a lot of messages from lawyers and a lot of lawyers I know and strangers too who were excited about the case.
Like so many that it's interesting in the internet age, you kind of get to data mine your own life and your own experience because I probably got about 600 messages, but that's including lawyers and non-lawyers as well, just people I've known from high school,
law school, whatever.
And something I've learned, which I didn't realize, I always knew that men and women had different views about things, obviously, but I didn't realize how differently they viewed things.
And especially a lot of the male lawyers, they had very, very different views about it.
And the female lawyers were a lot more excited about it and are a lot more excited about it and want to work on the issue because they don't want that from themselves.
Obviously, a lot of men are supportive of it too.
And especially people, they had said, I have daughters, I don't want this to happen to them.
And like Jane's father, he was, when Justice Denson gave his decision, he was the first person to start crying.
He was very, very emotional about it because obviously, you don't want someone to do that to your daughter.
And it's also, it's about the commodification of people's bodies.
And I've even seen people take these videos and sell them, which is like, yeah, there's a lot of, yes, it is evil.
And there's a lot of different reasons why people do this.
But that's one of them.
It's really disturbing.
So, you know, what I, I always talk about having a daughter when I talk about these sorts of issues.
And I hope that I'm well enough educated that even if I had two sons, you know, this would still matter just as much to me.
But, you know, talk, talk a little bit about, you know, this going forward, you know, you were, it's not as though you, you know, had a shingle on the side that said, you know, feminist lawyer for hire, right?
You know, you talk about people coming to you, like, is this a, you know, do you have cases lined up?
Is this something where, you know, all of a sudden, this is a practice for you?
You know, how, what does this look like going forward?
You know, is there a line of cases or, you know, is it kind of a one-off, you've kind of said your piece and you've established the tort and, you know, you're going to go back to doing commercial litigation?
So I'm always going to do commercial litigation because I do, I like to cross-examine on a contract .
It's fun because the person, the witness doesn't know what you're getting at.
So that's good.
And, and I do like commercial disputes.
And also, I want my services in this area to be obsolete 10 years from now.
And I, and people have said they don't think that's realistic, but I actually do think it is for a number of reasons.
But yes, I, when I did the case, I was, I had to work really, really hard to do that and to balance.
I've had an ongoing small claims court trial, which actually ended after the case ended.
And I knew it was going to be big and I, and Jane knew it was going to be big too.
It's not her name, obviously, Jane Doe.
And that's why we went forward.
And I told her it's going to be in the mainstream media because we need this precedent in Canada, right?
But when, when the case happened, I didn't realize how big it was going to be and how much of a reaction there was going to be.
And yes, I've been getting like a lot of referrals sent my way from, from the police, from the legal aid clinics, from the university clinics and from other lawyers and just people who've seen the case in the media.
And they found my name and they hunted me down because I don't have a good web presence.
I noticed that.
It was very difficult to find you.
I had to call up one of your past employers and they luckily gave me your email address.
Oh, did you call Affleck Green?
Yes, I did.
They're really nice.
They helped me out.
Actually, I was really busy.
I think they're getting that call because they were like, she doesn't work here anymore.
They did get a lot of calls.
And I also, I had a motion on the go and I couldn't do it because everything just got so crazy.
And I said, can you guys help me?
And they took that off my plate.
So they're really great there.
That's great.
You know, lawyers in the room, I will leave a little bit of time for, you know, if you want to ask any, I am not a lawyer, so I know there might be some kind of cases, pieces of the case that you want to ask about.
So feel free to think about that.
I'm going to give you a little opportunity in a bit.
But I want to talk a little bit about why this went, you know, all the way to court.
And do you see like these, you know, okay, it's been established, like, are people just going to start settling these things?
Like, you know, is this, you know, oh, you know, my son made a mistake.
I better watch out.
You know, that's a $5,000 hit.
You know, how do you think that plays out in terms of like the cultural way, you know, all of a sudden?
You talk about, you know, educating women.
I think the education should be of the men, obviously.
You know, is this, hey, parents, if your sons do this, you better expect, you know, is there going to be, you know, ads on TV?
There were ads on TV, actually.
Personal injury claim, you know.
Yeah.
So it's never, I don't think it's ever going to be like personal injury, because it's going to be difficult for lawyers to take it on contingency.
I think $100,000 is sort of the bottom, and it's only going to go up from there.
But personal injury cases can go up into the millions, and they're focused around whether or not you're going to be able to work for the rest of your life.
And these young women, I'm so amazed with them, because they're so resilient, and they work, and they go to school, and they get the grades, and they get into professional programs, and they're going to grow up to be professional women.
So that limits the damages, and also like even in defamation law, you don't get that much.
So why did this go all the way through?
Okay, so ever since I haven't been at a firm, like when I was at Affleck Green, I could send a demand letter, and I would get a settlement.
But since I've been on my own, people don't even bother to put my name into LexisNexis and find out what I've done.
I have someone on the other side from a big firm, and they're like, oh, Donna Wilson?
Is that how you pronounce it?
So I'm just in the habit of taking everything all the way through to court.
Sometimes I don't even send a demand letter, I just draft a claim and serve it, because what's the point?
So it really depends, and it's going to be in the future about getting some deep pockets on the line.
So that has not been established yet, and we're going to need to bring something all the way through to court before we can create settlements on that.
But there's a lot of parties who will be defendants, who to them, getting rid of something like this for a certain amount of money is like nothing to them.
They'd rather just pay you some, how do I say that without swearing, go-away money.
Also, we haven't talked about the website operators themselves.
I think that's where it starts to resonate with many of our members.
They maybe work at a social media company, or they work at a website where there's user-posted content, maybe they work at Reddit, wherever it happens to be.
As you said, in Canada, you get the letter, you take it right down.
But do they have any responsibility to vet it on the upload?
Yes, I think they definitely do.
And I think that we're never going to move away from the whole thing of, I can post a picture right now on my Facebook, or wherever.
I don't know, I'm old, I only do Facebook.
Or on Instagram, and it's going to be vetted afterwards.
And I think Facebook and Instagram have both taken the right approach with this issue from many years ago, because there were women complaining that they had put up photos of them breastfeeding, and they have anti-nipple policy, and they take it down right away.
But I think that that's the right way to do it, is to be proactive.
And it's interesting, in Justice Simpson's decision, he quoted a very old case that spoke about how you might be around someone's wife who's breastfeeding, but you don't take a photo and whatever, right?
And I think that that's the way that they need to be going.
And the big social media companies that have all the resources, and all the money, and all the staff working for them, to be proactive, I don't think there's any excuse for them to not do so.
And then the pornography websites as well.
Yeah, I mean, so obviously there are websites that exist solely for just this type of pornography, which is sick in itself.
But those that have a mixed part of professional and this user-submitted obviously have some obligation.
I think, personally, this is not the position of the IAPP.
With the technology that they have right now, they should be able to sort of block and vet this stuff right out of the gate.
They know it's a naked photo or a naked video, should you have to apply for an account and be vetted by the website before you're allowed to upload pornography.
You're like a professional pornographer with some sort of certificate, you know, the CIPP, the Certified Information Pornography Professional.
Right, the technology is there, and it's been there for years.
Like I said, I'm not really into social media, but I have Facebook because it's convenient and all that stuff.
And Facebook knows what my face looks like, and it has for years, right?
Because I've been, I think this is probably like five or six years ago, I was in another country, and they could tell I was in another country.
And they said, is this you?
Are you Donna Wilson?
And identify your friends, and they have that facial recognition, like all of that.
And there's ways to flag photos for potential nudity, and then bring it to someone's attention, and they can take it down.
It's not complicated at all.
Does it ever get into the law, though?
Are they legally culpable?
So the website that did host it for three months, why didn't you sue Pornhub?
So the answer to a lot of lawyers' questions is time and money.
Like, why did you make the decisions you made on your case?
Time and money.
We didn't have... I docketed about 110 hours on the case, but it was probably more like 200.
But like, what's the point?
I don't know if we're ever going to get paid.
And it was probably more like 300, because I got a little obsessed.
And when I had spare time, I would be on LexisNexis, just putting in all these weird terms.
But even then, getting over those jurisdictional issues, and even just the price of serving everybody and paying the process servers and the court fees, it was just too much.
And Jane and I spoke about that from the beginning, that we might never get paid.
And we were just going to settle with the defendant for a small amount, and he was just going to pay us $500 a month or something like that.
So that's why we didn't go after Pornhub.
But I think we could have, and I think that we could have been successful.
Really?
Yes.
I don't think they should be able... they have a user submissions portion of their website, and that's where he put it up.
And I don't think they should be able to do that without some sort of sign written consent or something.
And it's also just clearly breach of copyright, because she made the video by herself.
And she filmed it, she was the only one in it, so it was a slam dunk for copyright.
Right, so Pornhub has to argue that they thought it was her who posted it, because she was showing off or whatever.
That would be their only argument.
They had a disclaimer, I'm not sure what their disclaimer says right now, but I looked it up in 2011 when this happened, and it said, by posting a user submission, you guarantee and warrant that you have the consent of the individuals in the video, yada yada.
I don't think you can just throw that responsibility on the general public, especially on the internet.
You throw that on the general public, you end up with a boat named Boaty McBoatface, you know?
You're saying the internet is not responsible?
Well, I mean, I think people in general, even when they're anonymous, they should be responsible and do the right thing, but as the website who's hosting that, I think you have the responsibility to prevent that.
Especially, Pornhub is big, it makes a ton of money, and they can't just...
They should be able to do a little bit more to ensure the content on their site is above the board, I think.
And amateur pornography has been around forever too, right?
I remember in the 90s, there was a Playboy channel and they would have amateur submissions or whatever, and I'm pretty sure they didn't just take those VHS tapes and just put them on premium cable or whatever, without getting some sign-written consent.
So why would it be different now?
Exactly.
Are there any questions out there in lawyer-land or not lawyer-land, or anybody want to ask anything of Donna?
Oh, we've got somebody right there in the back.
We have someone with a microphone, if you could just wait for her, that would be terrific.
Thank you, Mindy.
Hi.
My question is... I'm not a lawyer, so... Do you see this tort law expanding?
Photos and videos involving porn cause embarrassment and mental distress, etc.
But there can be the same result with embarrassing and mental distress that involves situations where people are fully clothed.
And I also think there are cultures out there where a woman does not have to be in the nude to suffer reputational harm when a photo is posted.
So can this tort law expand beyond porn?
Man, I meant to ask that question, so I'm glad you asked that.
That's an excellent question, and I have been thinking about that.
And the answer is yes, I think.
And with the criminal provision that's been passed, they defined it as intimate images without consent.
And it's a weird cultural thing, too, that if there's a photo of a woman in her bikini, I mean, it's not very professional to put that up if you have a certain job, right?
But still, no one cares that much.
If you have a woman wearing lingerie that covers the exact same part of her body that the bikini would, then people make a big deal of it.
And with the Laurie Douglas case, who's a judge in Canada who lost her career, when that first came out in the media, there turned out to be more photos, but the first one they talked about was just her in racy lingerie.
Like, who cares?
But apparently people do.
So I think it's going to, yes, it's going to be broader, because the bottom line is you can't ruin people's lives over this stuff, and there's a duty for people to prevent that from happening.
And also, the tort in general is going to be broader than just images, because it's the publication of embarrassing or private facts about a person that would be highly offensive to the reasonable person and is not in the public interest.
And so that expands to tablet culture in general, which is very different in Canada than it is in the United States.
Like, Rachel McAdams lives in Toronto.
I've seen pictures of her on her bike.
Apparently she likes to go to Toronto.
People don't swarm her and take pictures of her on the street, right?
And when we have things in our media, gossip and stuff, it's not as invasive.
And I think the Laurie Douglas story, when that person went to the CBC, that should have been a non-story.
It should have never been published.
And I think with the creation of the new tort, something that extreme won't get published anymore in Canada, and it will also have an effect in the United States.
And something that some people have written about the case is they're worried about it having a chilling effect.
And I think it will have a chilling effect, but a positive chilling effect.
I don't think... for me it's not about...
oh, and I kind of didn't really answer your question about freedom of speech, but to me it's not about freedom of speech.
Because in Canada, we view freedom of speech a little bit differently.
It's kind of like you automatically have that made out any time someone interferes with what you're saying, but then you look to what's the purpose, and freedom of speech is about the core value that that represents, which is political speech.
Right.
Well, so I mean, that's certainly debatable in the United States, what the sort of core kind of underpinning is of freedom of speech.
As a journalist myself, I've seen... my Twitter feed is full of journalists, and when the Hulk Hogan case came out against Gawker, there was all of this, oh no, the chilling effect on the First Amendment.
And my reaction was, I hope it's a chilling effect on really bad journalism, because you're giving us a bad name.
I think it's like lawyers and journalists, but maybe journalists are going lower now because we're putting so much stuff on the internet.
The other thing that is in that question there is, you think about a really multicultural city like Toronto, these definitions of what highly offensive to the reasonable person are, and the definition of intimate.
Those are really interesting, and they also get a power.
So, first of all, you might have religious populations where highly offensive is just not having something on your head, or showing any skin.
A photo in a bikini has a much bigger impact in some cultures than it does in others, and those cultures are here in Canada.
But also this idea that it's highly offensive to be naked.
There are some feminists who would say, why is it highly offensive for a woman to be bare chested, and a man being bare chested is not highly offensive.
So, kind of wrapped up in there are all of these legacy cultural issues.
You talk about millennials.
My kids are sharing pictures.
Do you think the tort changes at all as these ideas of what's highly offensive change?
It might be much more normal to sext in 20 years.
Yes, I think sexting isn't going anywhere.
I've actually learned a lot more about it since I've been meeting with people who have been harmed by this.
You get used to being abused and stuff in subtle ways, and when someone sexts someone else and the guy picks up his phone and says, hey, look at this, right?
Those aren't the women who are coming to me.
They shrug it off.
It's women in very abusive relationships who are forced to do this almost because they get begged for months and then they send it.
But yes, it's very much a generational thing, and I think it's kind of like the rise of the millennials right now because things are changing, and it's like, go Hulk.
Go Hulk.
Because when we were kids, everyone had that doll, right?
I invited Hulk Hogan to speak at our next conference.
He costs $150,000, so he will not be speaking at our conference.
I thought, hey, you just won $150 million, come and speak pro bono.
We have a question in the back there.
Hi, first of all, thank you both very much.
I am a journalist, not a lawyer, so I have some questions from that perspective.
I think what you're saying appeals to the dignity and emotion of people, but it's also worth noting that we have libel laws and we have defamation laws that I think work quite well in deciding what is in the public interest and what is not, and that works in the courts.
And when we talk about cultural differences in what is intimate and what is not, I mean, now we're talking about personal differences and what someone wants to sue for under this tort.
So my question is twofold.
The first of which is, how do you see this tort expanding beyond pornographic images and into facts and what is printed?
Would that go through a court case or something else?
And the second part of my question is, how do you see a tort of this nature working alongside libel and defamation laws and will there be a different standard for what constitutes defamation and libel and what constitutes harm under this tort in a journalistic case?
Okay, so that's an excellent question.
And again, all the questions, there's a lot of questions within the questions.
And sorry, can I ask you, are you a journalist in Canada or the States?
In Canada?
Okay.
So I think that it will be different in Canada versus the United States.
And yes, there is already defamation and libel law.
And all of the mainstream media publications, they have a lot of very, very talented, brilliant lawyers working for them and deciding where's the boundary and how far do we push it.
And they often push it a little bit too far, I think, but they know what they're doing.
So it's not going to change that much, I don't think.
It's just going to be incremental.
And when it comes to the fact that we have those laws on the books already, in this case, when I first took the case, I pled defamation in my statement of claim.
And it was a bit of a reach, because I said that by posting that video on Pornhub, which under its terms said, by posting this, you represent and warrant that you have the consent of the individuals in the video.
By doing that, he was representing to the world that she had consented to that, because defamation needs to have an untruth.
And so that was the untruth, was that she didn't actually consent to that, and he was putting out to the world that she had agreed to do this.
She wanted to be an amateur porn star.
But that was one of the arguments that I left on the table, because I think it might have succeeded, but that wasn't what the case was about.
I like that, just to follow on that, the untruth nature of libel and defamation, that's really where the difference is in this case.
You're not defaming somebody's character by posting a photo of that person online, because that is the ultimate truth about them.
It's not in any way untrue.
And I think that's really where you brought in the combo package of defamation and sexual assault, is that we have this idea in our culture that you can't ruin somebody's reputation.
In this case, you're not ruining their reputation with an untruth, you're ruining it with truth, with this assault.
I think that's kind of an interesting combination.
Right, and it is interesting that you have trouble, you have to grasp for that untruth, and that people have had to hang their hats on defamation, but sometimes, a lot of the time, it doesn't work.
And when you try to hang your hat on copyright, sometimes it doesn't work, depending on who took the photo or the video, or whether they did it together.
So, it's kind of filling a gap in that.
And going back to journalism in general, I think that the bottom line is just, we're talking about ruining someone's reputation, kind of the bottom line is you can't ruin someone's life.
And yes, it's going to be interpreted in terms of the cultural norms, but for example, I think that, I don't know how familiar everyone is with the fact with the Laurie Douglas case, but there was a lawsuit and a settlement, and then her husband had kind of sexually harassed this third party,
and they had a settlement .
And obviously, it was a term of the settlement, it was confidential.
And then this man decided many, many years later to go to the CBC with the photos and make this non -story a story.
And to me, I find that highly offensive, because I'm a lawyer, and a settlement agreement, and the confidentiality within that settlement agreement, to me, that's sacred.
And so I find it highly offensive that the media would put that out there.
And so that's one example.
I also wanted to get you to answer the other part of his question, was the mechanism for expansion of the tort.
Someone else would have to bring a further case, right?
Someone would have to say, he posted, maybe he wrote a story about our last sexual encounter, and that was a violation of my privacy, so maybe there's not a photo of me naked, but he's describing something that I did.
I think that is actionable.
You could bring that case, and that could potentially help define the tort.
It's not just about images, it's also about this definition.
So that was what would have to happen, a sort of second case would have to come through.
Yeah, it would definitely have to be new cases, and that reminds me of Gawker.
And I think that with the Hulk Hogan case, I read that they might completely get taken down because of it.
And some of the stories that Gawker has done, I don't disagree with.
But some of them I've seen over the years, I just find really, really offensive, because you can invade on someone's private life to a certain extent, but there's things that people can whisper about, but they shouldn't be put online.
And I think that as people, we deal with that all the time.
Everyone has been asking me lately just kind of about cyberbullying and stuff, and it's been kind of strange because I'm remembering everything that happened in high school all of a sudden.
And even back then, there was an understanding of what's private and what's not, and what do people whisper and what's a rumor, and what do you scream out loud.
I think there was another question back there?
It's as much an observation.
So last year, the Federal Court of Appeal actually certified a class action using this tort related to the inappropriate disclosure of health information by Health Canada.
And so just for those in the room who kind of advise corporations and things like that, I think this, and obviously that claim was further reinforced by the case that you brought.
And that has nothing to do with nude photos.
That had to do with a botched mailing that disclosed health information about 43,000 people.
So it shows kind of the incremental growth of the privacy torts more generally.
And the principles that come out in completely outrageous, egregious facts like you were dealing with, those same principles can be applied through other areas of people's lives that one considers to be private, the disclosure of which is highly offensive to a reasonable person.
So that's the medical marijuana case, right?
Right.
And yes, I do think that that, I do agree with that case.
Because if you send someone a letter saying that they use medical marijuana, there's so much stigma attached to that.
And it could potentially ruin, it could ruin someone's life when things come out.
And the medical information has always kind of been at the core of privacy, right?
And then sexual information is as well.
People gossip and whatever, but one of the few norms that goes across all cultures that researchers have found is that sex is generally private.
So that's another thing is people talk about like the cultural norms.
And I'm like, well, that's actually pretty consistently...
That's pretty normal.
There's not a lot of cultures out there where, you know, people just have sex in public.
It's not a thing.
Unless you're watching Game of Thrones.
And then, you know, apparently every culture, they have sex in public.
We're really right at the end of our time.
I know that people need to get to other sessions.
I really appreciate all of you coming to listen to this.
It's an issue that is important to me personally, and I think it's really, you know, a new area for the IAPP to be talking about and to be exploring.
Donna, thank you so much for being here.
I really appreciate you spending some time with us.
Thank you so much.
Thank you for having me.