April 28, 2017 By: Erin Kelley
Print

Nelligan O’Brien Payne gratefully acknowledges the contribution of Natasha Chettiar, Student-at-Law in writing this blog post.

­What happens if I share explicit images or videos of my ex without their consent? Is this a crime?

Man on laptop

Our previous blog post on this topic explored the Ontario Court of Justice decision last year, Doe 464533 v N.D., which recognized a new privacy tort for the first time in Canada called “publication of embarrassing private facts.” This post will look at the criminal repercussions for engaging in revenge porn.

New criminal offence

In March 2015, a new criminal offence came into effect called “The Non-Consensual Distribution of Intimate Images”. Until then, there were no criminal consequences for posting or distributing lawfully obtained images of an adult without their consent. Though the courts have dealt with this new crime only a handful of times to date, and while many people still do not even realize that this is a crime, we are likely to see a steady increase in these cases, given the role technology plays in our relationships.

What qualifies as an “intimate image”?

If you have shared an intimate photo with a former partner and believe that person has published, distributed, transmitted, sold, advertised, or made that photo available in any other way without your consent, you may be able to pursue a criminal charge. However, not just any embarrassing or suggestive photo qualifies as intimate.

According to section 162.1 of the Criminal Code, an intimate image is defined as a photo or video:

a) in which the person is nude, is exposing his or her genital organs or anal region or her breasts or is engaged in explicit sexual activity;

b) in respect of which, at the time of the recording, there were circumstances that gave rise to a reasonable expectation of privacy; and

c) in respect of which the person depicted retains a reasonable expectation of privacy at the time the offence is committed.

To be found guilty of the non-consensual distribution of intimate images, a person must either know or be reckless to the fact that the person depicted in the image did not consent to its distribution. Criminal consequences will not be appropriate if the person who shared your photos or videos did so completely by accident.

The section of the Criminal Code dealing with the distribution of intimate images also contains a defence. A person cannot be convicted of the offence if the publication of the image “serves the public good” and “does not extend beyond what serves the public good.” What qualifies as serving the public good is unclear at this point. As the Criminal Code offers no further clarity on its meaning, the application and limits of serving the public good remain to be seen.

The courts

Though few cases have dealt with revenge porn to date, it is clear that courts view the behaviour captured under the offence as requiring denunciation and deterrence. In a recent Ontario decision, R v Zhou (2016 ONCJ 547), the court commented on the prevalence of non-consensual sharing of intimate images, and the need to recognize the vulnerability of young people in these cases – particularly young women – to trauma, psychological harm, serial victimization, and predation. These sentiments were echoed in a recent British Columbia decision, R. v P.S.D..

Internationally, revenge porn has become a serious problem in the US Navy, after it was discovered that hundreds of Marines may have been involved in sharing nude photos of women service members. Earlier this month, the US Navy Regulations, which outline lawful orders for Marines and Navy personnel, was updated to specifically prohibit “nonconsensual distribution or broadcasting of an image”. Violations of this new article could result in administrative action or criminal punishment.

What should victims do?

If your intimate images have been shared without your consent, contact the police and seek legal counsel. If your images were shared online, act quickly: take screen grabs of the posts and contact the websites where your images were posted to ask for their removal.

If you need information about what you can do outside of the criminal context, contact our Family Law Group.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.