What is commonly known as “revenge porn” is governed by s. 162.1 of the Criminal Code. The section makes it a criminal offence to knowingly transmit or otherwise send an intimate image without the consent of the person in the image or being reckless as to whether that person gave consent or not. The Crown has the option to proceed by summary conviction or by indictment, in which case the maximum punishment is 5 years prison. Once found guilty or convicted, an accused may also be prohibited from using the internet for any period that the court considers appropriate, subject to any exceptions that the court may direct.
What is an intimate image?
The Code sets out the definition. It means a visual recording –perhaps a photo or video – in which the subject is or exposing his/her genital or anal regions or her breasts or is engaged in explicit sexual activity. For it to be an intimate image, there must have been an expectation of privacy at the time of the recording and at the time of the offence, when the recording is disseminated. For example, if a person takes a “selfie” in which he or she is nude and sends it to their partner for his or her viewing, there would be an expectation of privacy.
Expectation of Privacy
Whether someone’s reasonable expectation of privacy exists will depend on the circumstances. For example, when the image or video was recorded, there may have been a reasonable expectation of privacy. A reasonable expectation of privacy is also required when the recording is distributed. It is an element of the offence and must be proved by the Crown beyond a reasonable doubt.
For those who have been victimized by revenge porn, the results can be devastating given the lack of control over the images once they are on the internet. As part of sentencing, s. 738(1)(e) of the Criminal Code allows the court to order that the accused reimburse the victim who has incurred expenses to remove the intimate image from the internet.
In a news item from July of this year, a mother of 4 in Cornwall, Ontario made a complaint to the police when she realized that photos that she had shared with her romantic partner had been distributed over Facebook Messenger. She asserts that it took 2 weeks before a detective trained in online crime could respond and take any action. Once the detective contacted Facebook, the photos were deleted and a warrant was obtained for user IDs which should lead to warrants for the physical addresses. She was shown an itemized list of thousands of transmissions. The investigation is ongoing.
This offence not only affects adults but also young people. With smart phones and sharing platforms being ubiquitous for young people, there are more opportunities to create and share these images and more possibility of getting into trouble if they are shared without consent.
The distribution of intimate images is not only a concern in the criminal law. In 2016, the Ontario Superior Court recognized a new privacy tort of “revenge porn” in the case of Jane Doe 464533 v. N.D. This was a case where the plaintiff, Jane Doe, had sent an explicit video to the defendant after much persuasion. The defendant then posted it online. The defendant agreed that he had posted the video to a pornography website but said that it had been taken down and did not agree to compensate the plaintiff, “Jane Doe”. Her lawsuit requested damages in the amount of $100,000. The judge in the matter ultimately found that the woman had made out the case for “breach of confidence” and awarded general damages in the amount of $50,000. Because of the breach of trust aspect, aggravated damages were awarded in the amount of $25,000. Punitive damages were awarded in the amount of $25,000.
The criminal and civil law are evolving. It is crucial that you have representation that can navigate the complexities of this new area.
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