LawsonInsight

Combatting “Revenge Porn” in Canada

• Lawson Lundell • Season 1 • Episode 11

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On Episode 11:Combatting “Revenge Porn” in Canada – Mark Fancourt-Smith and Alix Stoicheff speak to Research and Opinion’s lawyer Meg Gaily on steps made across Canada to protect people from non-consensual disclosure of intimate images, online harassment, and “revenge porn”. They discuss how legislation varies from province to province and what measures are in place to protect those most vulnerable. 

Mark Fancourt-Smith  00:15

Welcome to LawsonInsight. I'm Mark Fancourt-Smith.

Alix Stoicheff  00:18

And I'm Alixandra Stoicheff. Thank you for joining us on our podcast brought to you by Lawson Lundell LLP, LawsonInsight. On this episode, we will be speaking with Meg Gaily, a lawyer in Lawson Lundell’s Research and Opinions group in the Vancouver office.

Mark Fancourt-Smith  00:30

As part of the Research and Opinions group, and Meg advises clients and organizations on virtually all practice areas of the firm and specializes in administrative law, commercial litigation, civil procedure and appellate practice and professional conduct. Meg, welcome to the podcast! 

Meg Gaily  00:46

Hi.

Mark Fancourt-Smith  00:48

We wanted to have you on the podcast today to talk about the statutory torque relating to the non-consensual disclosure of intimate images or what's often referred to as anti-revenge porn legislation. There's been some developments in this area of the law over the last few years, including legislation that was brought in a couple of years ago in Alberta, called the Protecting Victims of Non-Consensual Distribution of Intimate Images Act. Make What can you tell us about why this legislation came to be?

Meg Gaily  01:13

Thanks, Mark. Yeah. So as I think everyone is aware, just through paying attention to the media, people in the 21st  century, often record themselves or send intimate images of themselves to their partners. And when a relationship breaks down, somebody the partner, one of the partners could distribute these intimate images further, you know, sort of more broadly, post them on the internet, send them to their friends. And you've also seen situations where people have surreptitiously recorded people like your standard sort of creepy peeping tom type scenario, or I think in Vancouver, there's a fairly well known case where in a restaurant, a chef was surreptitiously recording in the women's washroom. And while there's been in 2015, the Criminal Code, the Canadian Criminal Code was amended. And this became a crime where somebody was taking intimate images of people, which is a defined term, it's basically pictures of your sex organs, or, in the case of women of your breasts, and or, you know, people engaged in sexual activity. And that had been a crime since 2015. And so what's happened in the sort of five or six years since then, is that the provinces started enacting legislation to make it a tort to make it a civil wrong. So not just the crime. One of the reasons for that is probably because in order to go ahead with the criminal process, the police get involved, the crown gets involved. People are somewhat reluctant to go into court because they have this. Well, because of well known cases where women who it's primarily women who have had this happened to them end up themselves becoming victimized through the criminal process. It also resulted from two high profile cases in Canada involving fairly young women, young women in their teens, one in British Columbia named Amanda Todd, and another young woman in Nova Scotia named Rita Parsons, both of whom were the victims of harassment, cyber bullying, where intimate images of themselves were posted on the internet. And the person who did it was harassing the men. And it's just absolutely tragic, because in both of those cases, the young women killed themselves. So this the enactment of these kinds of statutes, the legislation, the civil, the civil legislation, was in response to sort of way to help people get these images taken off the screen, get injunctive relief, get these things stopped as quickly as possible. So that's where it was coming from.

Alix Stoicheff  04:16

And so Meg, how does Alberta's legislation address some of these issues that you've mentioned?

Meg Gaily  04:21

Well, Alberta is one of the few provinces I mentioned the case the young woman in Nova Scotia, so Nova Scotia, Manitoba, and Alberta, as well as Saskatchewan through its Privacy Act. All have very specific legislation in Alberta, the statute is called Protecting Victims of Non-Consensual Distribution of Intimate Images Act and the tort people refer to the tort as NCD II. It's a bit of a mouthful. What it does is it creates a statutory tort, meaning a civil wrong without proof of damages. And so if you're someone who I mean, the classic example is you've been in a relationship, your ex takes the intimate picture, sends it off to his or her friends are posted on the internet, because they're mad, or they're, for whatever reason, who knows. And so upon finding that out, you can commence an action. And what the statute in Alberta does is it gives you once you've commenced your action, you can get the court to issue an injunction to get those images taken down. But you can also seek damages, the same way you would for a tort. And you don't get the action moving fairly quickly, you don't have to go through the criminal court process. One of the things that it does is it recognizes like the Criminal Code definition of an intimate image, it recognizes that the picture that you may have sent to your ex is something over which you can claim privacy, it's a private image, it's an intimate image, it's not meant for disclosure, you didn't consent to it being disclosed. it you know, you deserve some remedies for it. The other thing in the Alberta legislation, which is good for those of us that have teenagers, parents aren't necessarily liable for the teenagers action. So I have a teenage son, let's say he decides to distribute an intimate image of a friend or, or whoever, I under the Alberta legislation, if this were happening in Alberta, I would not be fiscally responsible for monetarily responsible for any damages awarded to him, unless I participated in that distribution. The other thing about the act too is that it makes it a defense to the statutory tort. If it's a public, if it's in the public interest. I don't know exactly how to come up with a hypothetical for you, Alix, of what would be an intimate image that was in public interest. But perhaps by the end of our conversation, we can come up with one.

Alix Stoicheff  07:07

And so what sorts of decisions have we seen arising from this type of legislation, whether in Alberta or in other jurisdictions? I understand there aren't a lot.

Meg Gaily  07:15

There aren't a lot at all, and I did some research on that prior to having this conversation. In Nova Scotia, there's been one case that's gone ahead. It did not involve intimate images. In Nova Scotia, their legislation also includes cyber bullying and in that case, it was a situation where an ex-spouse was posting really nasty, negative harassing comments on a Facebook page and on the internet. And so the case went ahead. The court found that this was in violation of the Nova Scotia statute, and the court awarded damages to the person who was being harassed the damages in that case, the plaintiff was originally seeking something in the order of $750,000, the respondent, the people who had been posting the images, they argued that the damages should be very nominal and only $2,000. And the court ended up awarding 85,000, or I think it was closer, sorry, $75,000. So the awards are not huge. But again, in that case, and that just came down last summer in June of 2020. It didn't involve intimate images. And I think that factored into the court's decision. I couldn't find any cases out of Alberta, or any other cases that involved intimate images. But that's not to say that they haven't been happening, they could have been settled by them.

Alix Stoicheff  08:52

And on that topic of damages, am I correct in understanding that sort of like with a tort of defamation, you've got a situation where damages are presumed to exist? Yes, rather than having to Yeah, yes. I think an interesting aspect of this legislation in Alberta, in terms of making this legislation more available to people are recovering under this legislation more available to people.

Meg Gaily  09:17

Yeah, I mean, all of the all of the statutes make the tort of NC di non-consensual disclosure of intimate images, a tort that's actionable without proof of damage. So that's exactly it like you don't have to demonstrate you don't have to show or quantify the exact harm that you have suffered. And the case can go forward more quickly or easily on that basis.

Mark Fancourt-Smith  09:44

I just wanted to get back to the something you mentioned a few minutes ago, which was the conception of these images as ones over which a privacy interest can be claimed because in BC we don't have this kind of legislation that instead, as I understand it, the civil prosecution of issues of these client is happening by way of privacy legislation. So do you have a sense of why BC would have taken this approach and whether or not it's effective?

Meg Gaily  10:08

I don't know the rationale for why BC took that approach. And I don't think they've actually turned our minds to taking that approach. I think the Privacy Act was already in existence. Before the legislation. I mean, the legislation in Nova Scotia and Alberta and the other party provinces is very recent, as Alix said, it's only come down to only been enacted in the last four or five years, whereas BC’s Privacy Act has been enforced longer than that. And so what we see in those provinces where they don't have one of these statutes, is people going ahead, claiming the tort of invasion of privacy or, you know, in BC that went under the Privacy Act. There's a fairly well known case in British Columbia, there aren't a ton of these cases that get all the way to court. But one of the cases in British Columbia and it's under initials, so I'm not going to say it but it's actually fairly disturbing. It involved a young woman. I think by the time you she was in her late teens, early 20s, and it was discovered that her stepfather, her mother's intimate partner, was video recording her surreptitiously when she was taking a shower and getting dressed. They brought he claimed he pled guilty to the criminal offense. And so he pled guilty and was sentenced under that, and became a registered sex offender. But she also brought a civil action against him. And the court she claimed the torts of battery and assault, in addition to the invasion of privacy, the court did not uphold the claims for the battery in the assault, but they did award damages for the invasion of privacy. And in that case, like the one we saw out of Nova Scotia last summer, the amount of damages was about $85,000. 

Mark Fancourt-Smith  11:59

What's one of the drawbacks of proceeding under privacy legislation as opposed to having some of the more focused or specialized legislation that Alberta and Nova Scotia and Manitoba have?

Meg Gaily  12:12

I think it's just the simple recognition that, you don't have to go through, when you're going forward in a jurisdiction like Alberta or Nova Scotia. It's a given that the surreptitious recording of intimate images is a tort is problematic. It is a statutory tort. Whereas in British Columbia, at least as it stands now, you know, the person had to show that had to make out the elements had to show that it harmed them, that sort of stuff. The, you know, there's a case out of Ontario recently, where just recently, like, within the past two months, where the Ontario courts because Ontario, like BC is another jurisdiction that doesn't have the very specific statutory tort of non-consensual disclosure of intimate images, but this or cyber bullying. And in that case, the judge found that there is a tort of internet harassment. I don't know if that answers your question so much, Mark…

Mark Fancourt-Smith  13:11

No, it does. It does. Thanks.

Alix Stoicheff  13:13

You know, our discussion today has focused on the different approaches taken by the provinces. And I understand that there has been some discussion about creating a uniform law that would deal with this issue across the country. Of course, that's complicated to some degree, because the federal government, of course, has jurisdiction to address these issues from a criminal law standpoint, and the provinces from a civil law standpoint, but I'm wondering if you can talk a little bit about the potential approach taken by the Uniform Law Conference of Canada and where that might be headed?

Meg Gaily  13:43

Sure. So in 2018, and in Uniform Law Conference of Canada, the Uniform Law Conference is very active in the United States, they have a lot of uniform codes. In Canada, we have a few of them, and what they do is the Uniform Law Conference recommends where they see a need for uniformity across the country. They'll draft up legislation and recommend to the various provinces that they adopt it. And often they do, they don't necessarily refer to it as a uniform statute, but it will be the wording that comes from the conference. So in about 2018, a couple of professors law professors were actively involved in working up uniform legislation on the creating the statutory tort of non-disclosure, non-consensual disclosure of intimate images. And one thing that is really interesting, and you hope that the uniform the proposed uniform legislation is adopted. What they've done is they've created a statute that unlike the existing statutes, or the Criminal Code, it creates two avenues for remedies and what it proposes it is that there's a basic fast track avenue. So if you're someone and you discovered that your intimate images have been distributed, you can get into court under this fast track aspect of it and get an injunction to take those images down. The legislation, the uniform legislation contemplates that the what is called the internet intermediary. So in other words, the indexing platform, the service that has been used to promote the images or distribute the images, they won't be held liable if they take all reasonable steps. So if you discover that somebody posted something on Facebook, you contact Facebook, if Facebook agrees, and they try and take it down, they won't be liable under the Uniform Act. And the idea is that you can get in as quickly as possible because everybody recognizes that the biggest concern for people who have been victimized by this is getting those images permanently and quickly removed from the internet before they can really do long standing long lasting harm. And then the proposed Uniform Act also has a traditional statutory tort. So in that respect, it's like the existing legislation.

Alix Stoicheff  16:15

Well Meg, thanks very much. I think it'll be really interesting to see, you know, whether there are decisions that come out of Alberta's legislation and the other legislation we've discussed today, and then also whether that draft Uniform Code is picked up by the provinces and those two tracks that you talked about are coming to legislation. So thanks for joining us today.

Meg Gaily  16:37

You're welcome. Thank you. 

Mark Fancourt-Smith  16:39

Yeah. Thanks, Meg.

Meg Gaily  16:40

Thanks.

Mark Fancourt-Smith  16:40

Thank you for joining us on LawsonInsight, and thanks again to Meg Gaily for joining us today.

Alix Stoicheff  16:46

For more information on this issue, you can check out Meg’s article in the Canadian Bar Association is October 2020 edition of Bar Talk [HERE]. And there's a link to this article on the firm's website at lawsonlundell.com. You can also stay up to date by connecting with us on social media using the handle @lawsonlundell. And by subscribing to the podcast on Apple, Spotify or Google. Thanks very much for listening.