Court of Appeal Considers Effect of Nude Photos on Contractual “Morals Clause”

Andrew Ottaway, B.A. (Hons.), LL.B.Appeals, Appellate Advocacy, Brand Protection, Business Litigation, Civil Litigation, Commercial and Contract Litigation, Contract Disputes, Contract Termination, Entertainment and Media, Internet | Technology, Media Litigation0 Comments

In Zigomanis v. 2156775 Ontario Inc. (D’Angelo Brands), 2018 ONCA 116 (CanLII), the Defendant entered into a promotional contract with the Plaintiff, who was at the time a professional hockey player.  The contract contained a “morals clause”, stating that the Defendant could terminate the contract if the Plaintiff “commits any act which shocks, insults, or offends the community, or which has the effect of ridiculing public morals and decency.”

The Defendant terminated the contract for an alleged breach of the morals clause: specifically, unknown persons published nude photographs of the Plaintiff on the internet.  The photos had originally been sent by the Plaintiff to his girlfriend, before he entered into the contract.  The Defendant argued that sending the nude photos violated the morals clause.

The Plaintiff sued the Defendant for wrongful termination of the contract.  The trial judge found, among other things, that the private transmission of nude photographs within a relationship did not offend the morals clause.  The trial judge ordered the Defendant to pay the Plaintiff the balance due under the contract.

The Defendant, on appeal, argued that the trial judge made a palpable and overriding error in failing to find that sharing the nude photographs within an intimate relationship would shock the conscience of the community.  The Court of Appeal disagreed, stated that the trial judge’s decision was appropriately based in “the timeless human practice of sharing intimate information within relationships”,  as well as the expectation of privacy when sharing intimate information and the public policy reflected in legislation that protects the privacy of personal communications in the internet age.  The Court of Appeal dismissed the appeal.

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Andrew Ottaway, B.A. (Hons.), LL.B.

Andrew Ottaway, B.A. (Hons.), LL.B.

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