Privacy of Intimate Images in a Digital Age

by Robertson Stromberg | Jan 6, 2020 | Articles & Research, Media Law / Defamation, Sean M Sinclair

Privacy of Intimate Images and Videos in a Digital Age

By Sean Sinclair of Robertson Stromberg LLP

The online distribution of intimate images and videos (often referred to as “revenge porn”) is a growing problem in Canada.  According to the RCMP, as outlined in a story by CBC News[1], police forces are on track to handle more than 5,000 complaints of the unauthorized distribution intimate images or videos over a five-year period.  The problem is intensifying in recent years, with police handling more than 1,500 cases per year for each of the past three years.

There are both criminal and civil law issues that arise from these actions.  Some of these issues are addressed below.

Criminal Offence

Section 162.1 of the Criminal Code criminalizes the publication or distribution of intimate images (including videos) of an individual without consent.  A working group looking at whether to pass this law found that the existing offences of voyeurism, obscene publication, criminal harassment, extortion and defamatory libel did not adequately address the issue of non-consensual distribution of intimate images and that changes to the law were needed.[2]  Section 162.1 of the Criminal Code was introduced in 2014, motivated in part by the cases of Rehtaeh Parsons and Amanda Todd who had committed suicide after individuals had distributed intimate images of them online.

An individual in Saskatchewan has since been convicted under Section 162.1[3] and received an 18-month prison sentence.  There are other cases decided across Canada and several ongoing matters which deal with this same issue.

Civil Claims

In addition to criminal law prosecutions, there are a few cases where victims of this conduct have brought court actions against perpetrators.

The nature of the civil lawsuits varies, to some extent, province-to-province.

In Saskatchewan, the government passed amendments to The Privacy Act in 2018 to address the distribution of intimate images.  It is now a tort in Saskatchewan for a person to distribute an intimate image of another person without that person’s consent[4].  The Act presumes that consent was not given, and the poster of the material bears the onus to establish that he or she had reasonable grounds to believe that consent was given, to avoid liability.

There are no reported Saskatchewan decisions on these new sections of The Privacy Act.  Thus, it is difficult to know what monetary compensation might be given for this type of conduct.

In several other provinces, there are no statutes that create civil liability for the online distribution of intimate images.  However, courts have expanded tort law to allow for civil liability for this type of a claim.

The leading case is Jane Doe 464533 v N.D.[5] (an Ontario case where they do not have a statute that deals with this issue).  The basic facts are that the defendant had posted an intimate video of the plaintiff on a pornographic website without consent.  The defendant allegedly also showed the video to some of his friends or acquaintances.  The plaintiff’s friends became aware of the video as well.  It was removed by the defendant after approximately 3 weeks.  There is no way to know how many times it was viewed or downloaded.  The plaintiff was devastated.  She deferred examinations, skipped school and stayed in bed.  She had trouble sleeping and started seeing a counsellor to deal with the emotional fallout.  She experienced serious depression.

The defendant in Jane Doe did not initially file a statement of defence.  He was, therefore, deemed to have admitted to the acts in the claim, including the fact that he posted the video without consent.  The judge found that the acts of the defendant led to liability on three different bases: breach of privacy, intentional infliction of mental distress and breach of confidence.

On the breach of privacy claim, the judge adopted a new tort, which stems from American case law, of “public disclosure of private facts”.  In order to establish that there has been public disclosure of private facts, the judge in Jane Doe indicated that a plaintiff would need to show that there had been publication of a matter that is highly offensive to a reasonable person and is not of legitimate concern to the public.

The Court in Jane Doe awarded general damages of $50,000, aggravated damages of $25,000 and punitive damages of $25,000.

It should be noted that the defendant later successfully brought a motion to lift the default judgment to allow him to defend the claim.[6]

Conclusion

These issues of online dissemination and distribution of intimate images and videos without consent are increasing.  Hopefully though, the relatively new criminal sanctions and developing tort law will have some positive effect in deterring individuals from sharing such materials without consent.

[1] https://www.cbc.ca/news/canada/saskatchewan/revengeporn-and-sext-crimes-canada-sees-more-than-5-000-police-cases-as-law-marks-5-years-1.5405118

[2] https://www.justice.gc.ca/eng/rp-pr/other-autre/cndii-cdncii/p6.html

[3] https://www.cbc.ca/news/canada/saskatchewan/north-battleford-revenge-porn-1.5343285

[4] Section 7.3(1) of The Privacy Act

[5] 2016 ONSC 541

[6] 2016 ONSC 4920