The possible legal ramifications of publicity placing a current or past employee in a false light is an issue employers should keep in mind in 2022 and beyond.
The relevant case, Yenovkian v Gulian, represents the first time in Canada that the tort of publicity placing someone in a false light was recognized. Since the decision was rendered in late 2019 a number of Canadian courts have cited and applied Yenovkian, though mostly in cases involving family law.
While the tort of publicity placing someone in false light hasn’t yet been applied in an employment context, privacy torts are often engaged in the employment context. As a result, employers should be aware of the development in Yenovkian. They should take care to ensure that information shared in the public domain about an individual doesn’t represent that individual in a false light or as something other than what they are.
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In the Yenovkian case, a father engaged in a pattern of conduct that included cyberbullying against his children, their mother and their grandparents on various websites and through the use of videos, online petitions and emails including videos and photos alleging that the mother and grandparents were drugging and abusing the children. The Ontario Superior Court of Justice described the father’s actions as being “outrageous and egregious conduct at the extreme of reprehensibility.”
After briefly summarizing the evolution of three other privacy torts in Canada, including intrusion upon seclusion, public disclosure of embarrassing private facts and appropriation of one’s name or likeness for the defendant’s advantage, Justice Freya Kristjanson noted the tort of publicity that places one in a false light in the public eye is the remaining item of the “four-tort” catalogue to be recognized in Ontario law and that this case presented appropriate circumstances for it to be recognized.
The tort of publicity placing someone in a false light is engaged when one gives publicity to a matter concerning another that places the other in front of the public in a false light. The individual publicly placing the other in a false light may be liable where the false light in which the other is placed would be considered highly offensive to a reasonable person and where the individual knew or were reckless to the falsity of the publicized matter and the false light in which the other would be placed.
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In explaining the tort, Justice Kristjanson noted that while the publicity giving rise to this cause of action will often be defamatory, defamation isn’t required to establish the tort. Justice Kristjanson explained that the wrong this tort seeks to remedy isn’t for publicly representing someone as worse than they are, but as other than they are, compromising the individual’s privacy right to control the way they present themselves to the world.