Keep Your Hands Off My Nudes
A Brief Review of Legal Response to Non-Consensual Distribution of Intimate Images in Alberta
By Athina Pantazopoulos
As our private lives become more and more public, Canadian law is faced with new challenges of responding to privacy violations in a modern world. The vast and largely ungoverned online world provides ample opportunity for wrongdoing and jurisdictions around the world are faced with the prospect of responding to online misconduct.
One area which is seeing recent and promising evolution in Canada is the law surrounding the non-consensual distribution of intimate images, or NCDII.
We are all familiar with how this phenomenon plays out in daily life. Private, intimate photos are uploaded to a public website or shared among individuals without the consent or often knowledge of the person depicted in order to embarrass, humiliate, or harm them.
There are currently a number of approaches in place in Alberta to address this form of misconduct in both criminal and civil courts. This article will examine four areas of recent development on this issue.
The Criminal Code
In 2014 the offence of “Publication of an Intimate Image without Consent” was added to the Criminal Code. Prior to the inclusion of this offence, there were very limited ways that criminal law in Canada could prosecute acts of NCDII. The offence of “Voyeurism” might be applied in some cases, but only where images were obtained without the consent of the person depicted.
The offence of “Publication of an Intimate Image without Consent” allows the criminal law to prosecute offenders who obtain intimate images in a legal way but share them without consent. This might occur in a situation where one knowingly gives an intimate photo to a sexual partner but does not consent to it being shared with others or made public.
To prove the offence, the prosecution must show that the accused published or distributed an “intimate image”, that the person depicted in the image did not consent to the distribution, and that the accused knew or was reckless to the non-consent of the person depicted.
The term “intimate image” is defined for the purpose of the offence. An “image” in this context includes any sort of visual recording, including both photographic and video recordings. To be classified as “intimate” the person depicted must be nude, showing an enumerated private area, or be engaged in sexual activity; furthermore, the circumstances of the image must give rise to a reasonable expectation of privacy both at the time of the recording and at the time that the distribution occurred.
Because this is a criminal offence, it is not prosecuted with a remedy-oriented approach. The victim of non-consensual publication of intimate images may find that criminal proceedings do not offer the same variety of remedies available in the private law system such as the financial award of damages.
This does not mean that the criminal approach does not offer a number of desirable outcomes for victims of this offence. In addition to fines and incarceration, there are a number of ancillary sentencing orders available for this offence, including orders prohibiting use of the internet, orders prohibiting communication with the victim while in custody, and in certain cases, DNA orders against the offender. These orders, while aimed primarily at deterrence, can offer security to a victim of NCDII in many cases.
Protecting Victims of Non-consensual Distribution of Intimate Images Act
In 2017, Alberta passed the Protecting Victims of Non-consensual Distribution of Intimate Images Act (Intimate Image Act), creating a targeted civil offence to protect against acts of NCDII. Prior to the enactment of this legislation, tort action for breach of privacy was generally made under the Personal Information Protection Act, which governs the collection and disclosure of personal information by organizations rather than private individuals.
The wording of the Intimate Images Act mirrors that of the related criminal offence very closely, with the very same definitions given to both “distribution” and “intimate image”.
The parameters of the offence are also outlined in a nearly identical manner. This tort is made out where a person distributes an intimate image of another while knowing or being reckless to the fact that the person depicted did not consent to the distribution. It is important to note, however, that as a tort the case is decided on a civil standard of the balance of probabilities rather than the criminal standard of proof beyond a reasonable doubt which may lead to a higher probability of success in court.
The legislation is clear that the expectation of privacy which is required to classify an image as “intimate” is not lost if the person depicted consented to the recording or consensually provided the image to another person. The expectation of privacy is maintained as long as the person receiving the image ought to have known that the person depicted did not consent to further distribution of their images. While this is an underpinning of the criminal offence, this tort is explicit in outlining that sharing an intimate image is not sufficient to suggest that further distribution of that image was consented to.
The advantage of bringing an action in tort is the variety of remedies that are available to the victim of the distribution of intimate images. This Act specifically outlines a number of remedies available.
The court may award damages to the plaintiff, including general, special, aggravated, and punitive damages. In this same vein, the court may order the defendant to account to the plaintiff for any profits obtained by the distribution of the image.
The court also has the power to issue an injunction “on such terms and with such conditions that the court determines appropriate”. This level of discretionary power gives the court the ability to tailor the injunction to the situation at hand and provide solutions which are most beneficial to the victim. Where images are posted online, the court may issue an injunction for the defendant to remove the posting. Where images are physically distributed, the court may issue an injunction for the return of all copies to the subject.
It is also important to note that the person depicted does not need to show proof of damage or loss in order to bring an action under this tort. The act of non-consensual distribution is sufficient.
Tort of Public Disclosure of Private Facts
In 2021, Alberta recognized a new common law tort in the case of ES v Shillington, the tort of Public Disclosure of Private Facts. This tort was recognized in this case primarily to address instances of NCDII which could not be addressed by the 2017 Intimate Images Act as they occurred before the legislation came into force.
This common law tort has a much broader application than the Intimate Images Act, as it applies to any public disclosure of any private information made by either individuals or corporations.
In order to prove the tort of Public Disclosure of Private Facts, a plaintiff must show that:
the defendant publicized an aspect of the plaintiff’s private life;
the plaintiff did not consent to the publication;
the matter publicized or its publication would be highly offensive to a reasonable person in the position of the plaintiff; and,
the publication was not of legitimate concern to the public.
Much like the Intimate Images Act, available remedies under this tort include damages and injunctive relief.
In cases where this tort has already been applied to non-consensual disclosure of intimate images, significant damages have been awarded, with $80,000 in general damages alone awarded in the case of LDS v SCA.
This tort, while new to Alberta, has been in place in Ontario for several years already. The breadth of the tort may allow for many new causes of action to be brought, but it has equally drawn criticism for creating a lack of certainty regarding applicable causes of action.
Uniform NCDII Legislation
In 2021 the Uniform Law Conference of Canada (ULCC) adopted a new Uniform Non-consensual Disclosure of Intimate Images Act (Uniform Act), a tort tailored specifically to providing faster and more effective access to justice in cases of non-consensual distribution of intimate images.
The ULCC is a Canadian law reform organization focused on providing independent analysis and recommendations for the harmonization of law in Canada. While the adoption of any unified Act is not binding on Alberta, it does provide a framework which provinces may choose to adopt in whole or in part in order to create a more unified legal response across Canada.
The Uniform Act creates a two-pronged approach to the tort of non-consensual disclosure of intimate images.
The first prong creates a new strict liability tort for the distribution of intimate images. This tort will be made out where the image in question is 1) an intimate image of the plaintiff and 2) distributed by the defendant. The terms “intimate image” and “distribution” are again defined nearly identically to the other legislation examined in this article. Additionally, much like the Intimate Images Act, plaintiffs do not need to prove that they suffered harm in order to establish this tort.
When these two elements have been proven, the court can provide a number of injunctive remedies, including having the intimate image removed from any platform operated by an internet intermediary, and having the intimate image de-indexed from any search engine. These remedies are hugely important to minimizing the harm done by the non-consensual posting of intimate images on web-based platforms. Because of the low burden on the plaintiff in establishing this tort, relief measures can be implemented much more easily and rapidly than other approaches.
The second prong takes a more traditional approach by establishing a fault-based tort. While the requirements of this offence are identical to the strict liability offence, the defendant has a number of defences available which are not available under strict liability. These defences include lack of intent to distribute the intimate image, honest belief that the plaintiff consented to the distribution of the intimate image, and distributions made in the public interest.
If the offence is made out and none of these defences are raised, the court may additionally award damages, similarly to the torts previously discussed.
The huge benefit of this two-pronged approach is that it is specifically designed to allow speedy relief through a simple procedure without huge costs or extended litigation.
It is clear from the volume of legal approaches available in Alberta alone that there is a great desire to address and discourage the non-consensual disclosure of intimate images. While all of the current approaches offer particular benefits and drawbacks, the continued effort by organizations such as the ULCC indicates that more can be done to improve this area of the law and create more effective solutions for victims of these acts.