Privacy of Intimate Images and Videos in a Digital Age
By Sean Sinclair of Robertson Stromberg LLP
The online distribution of intimate images and videos (often referred to as “revenge porn”) is a growing problem in Canada. According to the RCMP, as outlined in a story by CBC News, police forces are on track to handle more than 5,000 complaints of the unauthorized distribution intimate images or videos over a five-year period. The problem is intensifying in recent years, with police handling more than 1,500 cases per year for each of the past three years.
There are both criminal and civil law issues that arise from these actions. Some of these issues are addressed below.
Section 162.1 of the Criminal Code criminalizes the publication or distribution of intimate images (including videos) of an individual without consent. A working group looking at whether to pass this law found that the existing offences of voyeurism, obscene publication, criminal harassment, extortion and defamatory libel did not adequately address the issue of non-consensual distribution of intimate images and that changes to the law were needed. Section 162.1 of the Criminal Code was introduced in 2014, motivated in part by the cases of Rehtaeh Parsons and Amanda Todd who had committed suicide after individuals had distributed intimate images of them online.
An individual in Saskatchewan has since been convicted under Section 162.1 and received an 18-month prison sentence. There are other cases decided across Canada and several ongoing matters which deal with this same issue.
In addition to criminal law prosecutions, there are a few cases where victims of this conduct have brought court actions against perpetrators.
The nature of the civil lawsuits varies, to some extent, province-to-province.
In Saskatchewan, the government passed amendments to The Privacy Act in 2018 to address the distribution of intimate images. It is now a tort in Saskatchewan for a person to distribute an intimate image of another person without that person’s consent. The Act presumes that consent was not given, and the poster of the material bears the onus to establish that he or she had reasonable grounds to believe that consent was given, to avoid liability.
There are no reported Saskatchewan decisions on these new sections of The Privacy Act. Thus, it is difficult to know what monetary compensation might be given for this type of conduct.
In several other provinces, there are no statutes that create civil liability for the online distribution of intimate images. However, courts have expanded tort law to allow for civil liability for this type of a claim.
The leading case is Jane Doe 464533 v N.D. (an Ontario case where they do not have a statute that deals with this issue). The basic facts are that the defendant had posted an intimate video of the plaintiff on a pornographic website without consent. The defendant allegedly also showed the video to some of his friends or acquaintances. The plaintiff’s friends became aware of the video as well. It was removed by the defendant after approximately 3 weeks. There is no way to know how many times it was viewed or downloaded. The plaintiff was devastated. She deferred examinations, skipped school and stayed in bed. She had trouble sleeping and started seeing a counsellor to deal with the emotional fallout. She experienced serious depression.
The defendant in Jane Doe did not initially file a statement of defence. He was, therefore, deemed to have admitted to the acts in the claim, including the fact that he posted the video without consent. The judge found that the acts of the defendant led to liability on three different bases: breach of privacy, intentional infliction of mental distress and breach of confidence.
On the breach of privacy claim, the judge adopted a new tort, which stems from American case law, of “public disclosure of private facts”. In order to establish that there has been public disclosure of private facts, the judge in Jane Doe indicated that a plaintiff would need to show that there had been publication of a matter that is highly offensive to a reasonable person and is not of legitimate concern to the public.
The Court in Jane Doe awarded general damages of $50,000, aggravated damages of $25,000 and punitive damages of $25,000.
It should be noted that the defendant later successfully brought a motion to lift the default judgment to allow him to defend the claim.
These issues of online dissemination and distribution of intimate images and videos without consent are increasing. Hopefully though, the relatively new criminal sanctions and developing tort law will have some positive effect in deterring individuals from sharing such materials without consent.
 Section 7.3(1) of The Privacy Act
 2016 ONSC 541
 2016 ONSC 4920
The Canadian Media Lawyers Association held their annual meeting in Toronto November 8th and 9th, 2019. As part of the conference, Sean Sinclair spoke on recent updates and developments in Media Law across the prairies.
You can learn more about this organization here.
The Public Service Information Community Connection (PSICC) is presenting 2019 Saskatchewan Connections Conference : Access, Privacy, Security, IM, & Health Information September 26 and 27 in Saskatoon.
At the conference, the Information and Privacy Commissioner of Saskatchewan is hosting a panel discussion “Right to Know : The Openness of Our Systems”. Included on the panel is RS Media Law specialist Sean Sinclair.
This free event is open to the public and will be held at the Hilton Garden Inn on September 27, and 27th, 2019.
Media outlets in Saskatchewan no longer have access to Police One, the police radio scanner that allowed journalists to hear what is happening on the secure police channel.
Both Saskatoon and Regina police services say they have closed their scanner channels to media to comply with the Local Authority Freedom of Information and Protection of Privacy legislation. The problem lies in the sharing of personal information. Regina police Chief Evan Bray said information including names, addresses, dates of birth, past criminal charges and other pieces of personal information were shared on the dispatch channel.
Representing the media, Sean argues in today’s Saskatoon StarPhoenix that journalists provide an important service by alerting the public to potentially dangerous situations. “There is a huge public interest in ensuring that the media have access to that timely information so that they can alert the public to the issues that are occurring.”
Sean has done interviews with the CBC as well as the StarPhoenix. The CBC news story can be read here.
Benchmark Litigation Canada has published its guide to the leading litigation teams in the country.
The guide’s results are the culmination of a four-month research period during which time extensive interviews are conducted with litigators and their clients. The researchers examine casework handled by the firms and seek opinions on litigators practicing within their province or practice area. Using this client and peer-review methodology, Benchmark strives to provide the most accurate and comprehensive coverage of the Canadian litigation market.
Robertson Stromberg is pleased to see that the firm is ranked as a Recommended Firm for the province of Saskatchewan. Lawyers singled out as “local litigation stars” include M. Kim Anderson in the area of Insolvency Law and Gary Young in the areas of Class Action, Commercial, Insurance, and Intellectual Property. This designation reflects individuals who were recommended consistently as reputable and effective litigators by clients and peers.
Benchmark also lists Jennifer Pereira and Sean Sinclair as “future stars”. This designation is given to “ones to watch”, lawyers who are rapidly building their reputations in the market.