Privacy rights are not a new concept in law, though they are quickly becoming an area of increasing importance. Through the internet, private details can become public in a matter of seconds. One of the more extreme examples of this is the non-consensual disclosure of intimate images (“NCDII”) or “revenge porn”.
To address this issue, a series of decisions from Ontario[1] have sought to expand the law of privacy through the tort of “public disclosure of private facts”. Following several other provinces, BC’s legislature has passed the Intimate Images Protection Act, SBC 2023, c 11 (the “Act”), which is expected to come into force in the coming months. The stated legislative intent is to create a scheme of redress for the unlawful distribution, or threat of distribution, of intimate images.
Here are some important highlights on what to expect once the Act is in force:
- Intimate images can include photos, videos or “visual simultaneous representations” (e.g. livestreams) depicting an individual engaging in a sexual act, nude or nearly nude, or exposing the individual’s “genital organs, anal region or breasts”.
- A claimant (i.e. the victim) may apply to the court without notifying the other party and need only prove that (1) the image is an intimate image depicting the claimant and (2) a person other than the claimant distributed the image without the claimant’s consent.
- Once a claim is proven, an extensive list of orders can be made regarding the removal of the image, including ordering “internet intermediaries” (e.g. social media platforms and websites) to remove the image.
- Outside of the initial removal of the images, claimants can also seek damages, including compensatory, aggravated and punitive damages. A review of the caselaw from other provinces shows that awards for such claims can be expected to be $100,000.00 or more (though this remains to be established in BC).
How the Act will be applied:
- Claimants will benefit from a reverse onus, meaning the respondent must prove that the claimant did not have a “reasonable expectation of privacy” when the image was recorded and distributed. The respondent must then prove that they had consent, or honestly and reasonably believed that they had consent, to disclose the images or that the distribution was in the public interest and did not extend beyond that interest.
- Even mere threats of disclosure can be subject to similar procedures, though the relief will vary with the circumstances.
- The Act offers guidance regarding publication bans relating to the distribution of intimate images.
- A claimant’s rights and remedies under the Act are in addition to any other rights and remedies they may have under other legal frameworks, such as the Criminal Code.
- The Act is expressly retroactive once in force, applying to incidents that occurred as early as March 2023.
The Act may still be subject to changes prior to coming into force and the effectiveness of the Act remains to be seen. However, the Act appears to address issues with BC’s privacy legislation and will likely be a positive step towards empowering victims of such incidents to properly address the issues and seek compensation where their privacy has been violated.
While the Act is structured to be favourable to claimants, the legal processes to obtain relief are complex, and it is best to consult with a lawyer on how best to navigate them.
[1] Jones v. Tsige, 2012 ONCA 32; Jane Doe 464533 v N.D., 2016 ONSC 541, and Jane Doe 72511 v. N.M., 2018 ONSC 6607
Thank you to Pushor Mitchell Partner Mark Danielson and Associate Kyle Ramsey for their contribution to this article.
