Ontario Court Dismisses Cyber Attack Class Action: Why ‘Intrusion Upon Seclusion' Didn't Work

The Ontario Superior Court of Justice has dismissed another class action in which the plaintiff used 'intrusion upon seclusion' to claim damages for a cyber attack.

Justice Perell's decision in Del Giudice v Thompson (Thompson) reinforces recent findings in similar cases where the intrusion upon seclusion tort was not upheld and organizations were not found vicariously liable for their employees. Thompson also shows how important carefully drafted contract and privacy policy terms can be to an organization's cyber risk management.

The context

Organizations and their insurers have been carefully watching plaintiff counsel's use of the intrusion upon seclusion tort, especially its application to data loss claims and resulting class actions, since the Court of Appeal for Ontario recognized the tort in 2012. While plaintiff counsel can rely on many causes of action when seeking a remedy for the consequences of data loss, intrusion upon seclusion was a novel way to