B.C. legislation on non-consensual distribution of intimate images ‘long overdue’, lawyer says

By Ian Burns

Law360 Canada (March 14, 2023, 1:46 PM EDT) -- British Columbia is proposing legislation which would ensure that people have more recourse to the judicial system if their intimate images are shared without their consent, and legal observers are applauding the multiple paths it creates to make sure such images come down quickly.

If it is passed by lawmakers, the Intimate Images Protection Act (Bill 12) will create a new, expedited process through the Civil Resolution Tribunal (CRT) which will result in legal decisions and orders designed specifically to stop the distribution of intimate images without consent, alongside a more traditional civil action for survivors to seek monetary damages for harms suffered.

B.C. Attorney General Niki Sharma said having intimate images shared without permission “is a betrayal that can have devastating impacts.”

“Victims are often too ashamed to come forward and those who do are met with limited, complex and expensive legal options,” she said. “We are building a path to justice for people to regain control of their private images and hold perpetrators to account.”

The bill would also require those who are found to have distributed intimate images without consent make every reasonable effort to destroy all intimate images and remove them from the Internet, and would order intermediaries like Facebook and Instagram to remove the intimate image and de-index it from their search engines.

“As our lives become increasingly digital, more people are sharing intimate images with each other. But when your intimate images are used against you, that’s a violation of trust that can be extremely difficult to overcome,” said Kelli Paddon, the province’s parliamentary secretary for gender equity. “This legislation is a critical part of our work to better support people impacted by sexualized violence.”

Daniel Reid, Harper Grey LLP

Daniel Reid, Harper Grey LLP

The legislation covers intimate images, near-nude images, videos, live streams and digitally altered images, including videos known as deep fakes. Research has shown incidents of sharing intimate images without consent have long been under-reported due to stigma, embarrassment and an assumption there is no way to seek redress. But these fears may be lessening — Statistics Canada reported an 80 per cent increase in incidents reported to police across the country, compared to the previous five years.

Daniel Reid, a defamation and privacy lawyer with Vancouver’s Harper Grey LLP, called the legislation “long overdue,” pointing to a 2019 Supreme Court decision (R. v. Jarvis, 2019 SCC 10) which said that privacy isn’t an “all or nothing” proposition.

“There used to be this idea that things were either public or private, and once you have shared an image with someone you had lost the expectation of privacy,” he said. “But your expectation of privacy is a nuanced thing, and this is an area in which courts and legislatures are starting to recognize the importance of privacy in a way that 20 years ago was just pretty much unmanageable.”

In 2015, an amendment to the Criminal Code came into effect which created a new offence for the non-consensual distribution of intimate images. But Moira Aikenhead, a limited-term assistant professor at the University of Victoria faculty of law, said a criminal remedy is something people don’t want to pursue for a lot of reasons.

Moira Aikenhead, University of Victoria

Moira Aikenhead, University of Victoria

“They may not want to subject the person who shared the image to the criminal justice system, or they may not want to go through the system themselves as a witness — but taking down images is usually the number one priority of victims,” she said. “So, it is nice to know B.C. has created this new statutory tort of non-consensual distribution, and getting the images taken down seems to be the first and foremost purpose of this legislation — which aligns with most victims’ experiences of what they would like see happen.”

Reid said ensuring that intermediaries like Facebook and Instagram have a role to play is “huge.”

“It can be very tricky when you have intimate images which are on sites all over the world, as you have to bring multiple applications to get an order to take them down,” he said.

And Aikenhead said it is significant that the legislation flags a requirement that complainants have a reasonable expectation of privacy in the images — and that expectation is not lost just because a person has sent the images themselves, or has consented to limited distribution.

“The issue of what a reasonable expectation of privacy is hasn’t been clearly addressed in the criminal context,” she said. “But this legislation says doing things like sending a nude picture to a partner will not result in a wholesale loss of the expectation of privacy.”

Bill 12 has passed first reading and is currently before the provincial legislature. More information can be found here.

If you have any information, story ideas or news tips for Law360 Canada please contact Ian Burns at Ian.Burns@lexisnexis.ca or call 905-415-5906.

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