When steps are taken, your case may be able to proceed without your name or identifiable information becoming public.
Your right to privacy is important and there are steps that can be taken to ensure that your name, along with any identifiable information, is removed from the legal process. Although the Court rules require that litigants be identified, the Courts do recognise that this is not always just, particularly when disclosing a litigant’s name would result in further harm or when confidentiality is at the core of a dispute.
If an order is granted allowing your case to proceed anonymously, your name will be removed from public documents and replaced by the common pseudonym ‘Jane (or John) Doe’ or your initials. In order to determine whether a case can proceed with an anonymous party, Courts consider three issues::
- Is there a serious issue to be tried?
First, Courts will determine whether there is a serious issue to be tried. In general, this is not a difficult test to meet. Given the serious nature of the non-consensual distribution of intimate images, and the Courts’ increasing recognition that breaches of privacy may give rise to a cause of action, we believe that Reclaim cases will meet this test.
- Is there a likelihood of irreparable harm?
Secondly, Courts will consider the likelihood of whether irreparable harm would be caused by your name being disclosed. In determining whether there is a likelihood of irreparable harm, Courts will consider any available medical or psychological evidence. So far, the Courts have not been willing to accept evidence of potential embarrassment alone as “irreparable harm.” Since the harm associated with the non-consensual distribution of intimate images is often increased when attention is drawn to the images, Courts have recognized that using a victim’s name in public documents can worsen the harm that is caused by the images being shared in the first place.
- Balance of convenience
Finally, Courts will balance the interests of proceeding with the case anonymously against the public policy requirement that parties to litigation (usually) be identified. In civil sexual assault cases, the argument has been made and accepted that public interest calls for anonymity since it increases the likelihood that assaults will be reported. In cases which involve the non-consensual distribution of intimate photographs, the use of anonymity similarly has the potential to increase the likelihood of other’s coming forward after an intimate photo was shared without their permission. There is a clear benefit, both to society and the victim, in allowing the victim to litigate anonymously.
For people who have had an intimate image distributed without their consent, the importance of minimizing attention to the image and the litigant by allowing the claim to proceed anonymously has been recognised by the Courts. In the recent case of Jane Doe 464533 v D. (N.), the Ontario Superior Court of Justice allowed the plaintiff to proceed anonymously. The judge understood that the use of the litigant’s real name would potentially cause additional emotional harm. Recognising that the emotional harm caused by the non-consensual distribution of intimate images is both significant and ongoing, the Courts have been willing to protect the innocent party from further harm through the use of pseudonyms.
Don’t let fear stop you from pursuing your legal rights. Talk to us about whether your case might be able to proceed anonymously, and how else we might be able to help.