Legislation affording speedy and effective relief to persons whose intimate images have been disclosed without their consent is in development in Canada.

It is now common for many people to privately exchange intimate images through electronic means. Other people take advantage of technology to surreptitiously record intimate images without the subject’s consent (such as “up-skirting”). The disclosure of a person’s intimate images without their consent can have devastating effects, “ranging from suicides by teenage victims to career-ending consequences when established persons are victimized.”¹

The criminal offence of knowingly publishing or distributing an intimate image of a person knowing that the person depicted did not consent to its distribution (or being reckless whether the person consented) was created in 2015.² The Criminal Code defines an “intimate image” to mean a visual recording of a person (by any means) in which the person is nude, or exposing their genital organs, anal region or breasts, or is engaged in explicit sexual activity, and in respect of which, at the time of the recording, there were circumstances that gave rise to a reasonable expectation of privacy, and to which the person retains a reasonable expectation of privacy at the time of its distribution.

In the past few years, several provinces enacted statutes specifically aimed at combatting the non-consensual disclosure of intimate images (“NCDII”), creating the statutory tort of NCDII, which does not require proof of damage (the “NCDII Acts”).³ The definition of “intimate image” in the NCDII Acts is the same (or similar to) the Criminal Code definition — including that at the time it was created and subsequently disclosed, the person depicted retains a reasonable expectation of privacy over the image. The remedies available under the NCDII Acts include monetary damages, accounting for any profits made through distribution, and injunctive relief. In 2018, Saskatchewan amended its Privacy Act ⁴ to include the statutory tort of NCDII and offer the same remedies as the NCDII Acts.

One of the most pressing and overriding concerns of a person whose intimate images have been disclosed without their consent is the speedy removal of the images and the prevention of further distribution. This relief may not always be possible quickly in criminal or traditional civil proceedings seeking compensatory damages for the tort.

In 2018, law professors Hilary Young and Dr. Emily Laidlaw presented a discussion paper to the Uniform Law Conference of Canada (“ULCC”) proposing harmonized NCDII legislation.⁵ The justification they offered is that NCDII torts are not geographically limited — the Internet is world-wide. Eliminating different rules for the same conduct in different jurisdictions would also reduce forum shopping and would be less burdensome for intermediaries — the commercial entity that hosts third party content through an online platform.

At the ULCC’s 2020 annual meeting held in August, the working group on NCDII (which includes Professors Young and Laidlaw) presented its report and a draft uniform NCDII Act to the joint session of civil and criminal delegates. The draft uniform NCDII Act shares many similarities with existing NCDII Acts (such as the definition of “intimate image”). Notably, it proposes two separate statutory NCDII torts — a simpler fast-track proceeding primarily for declaratory and injunctive relief, and a more traditional action for compensatory damages. The drafters hope that the adoption of a uniform NCDII Act with its fast-track process tort will provide an effective mechanism for the quick, cheap and effective takedown and de-indexing of those intimate images disclosed without consent, and further deter NCDII.

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1. Doe 464533 v. N.D., 2016 ONSC 541 at para. 16; default judgment set aside: 2016 ONSC 4920; leave to appeal refused: 2017 ONSC 127. | ↩
2. Criminal Code, R.S.C. 1985, c. C-46, s. 162.1. | ↩
3. Intimate Images and Cyber-protection Act, S.N.S. 2017, c. 7; Intimate Images Protection Act, S.N.L. 2018, c. I-22; The Intimate Image Protection Act, C.C.S.M. c. 187; and Protecting Victims of Non-Consensual Distribution of Intimate Images Act, S.A. 2017, c. P-26.9. | ↩
4. Privacy Amendment Act, 2018, S.S. 2018, c. 28. | ↩
5. 2018ulcc0001 ulcc.ca/images/stories/2018_pdf_en/2018ulcc0001.pdf | ↩