British Columbia Legislation Targeting Revenge Porn Comes Into Effect

On January 29, 2024, British Columbia’s new Intimate Images Protection Act (“IIPA”) came into force.^[1] The IIPA and its related resources are intended to provide a reporting process and support for victims of an offence colloquially described as “revenge porn”.

Revenge porn is the use or dissemination of intimate media, such as photographs, videos, live-streams, and deep fakes for a malicious purpose and without the consent of the individual(s) depicted. As an example, an individual posting nude photographs of their ex-girlfriend on social media to humiliate her.

In Canada, revenge porn is a listed offence in the Criminal Code. Section 162.1(1) states that it is a crime for “[e]veryone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct.”^[2] Revenge porn was added to the Criminal Code on March 9, 2015, through the Protecting Canadians from Online Crime Act.^[3]

By contrast, the IIPA provides civil remedies. Further, through the creation of the Intimate Images Protection Service, a gateway has been established to allow victims of revenge porn to find the help they need – and quickly.

Background

With the turn of the 21^st century, revenge porn has quickly become an increasing concern. A 2023 Statistics Canada study found that in 2022, there had been 896 reported incidents of revenge porn, compared to 569 in 2018.^[4] However, many revenge porn incidents go unreported due to a victim’s shame or embarrassment.^[5]

Revenge porn also has ripple effects in family law. For the couple in R. v. Fox, a mother was in a custody battle with her spouse who later created a revenge porn website featuring her intimate images. This caused her to lose her job.^[6] As Natasha Chettiar writes, revenge porn incidents can “irreparably hinder cooperation between the parents” and affect issues of custody and access.^[7]

In March 2023, British Columbia Attorney General Niki Sharma announced the IIPA, stating that “[i]f it's not your image, you don't have the right to share it.” Premier David Eby also stressed the IIPA’s importance in addressing revenge porn in a news conference, saying that “[i]f Taylor Swift is not immune from this, certainly British Columbians are not”, in reference to sexually-explicit images of the pop star generated by artificial intelligence recently shared on social media.^[8]

What Resources Are Now Available

Making a claim:

The IIPA allows victims of revenge porn to start a Civil Resolution Tribunal (“Tribunal”) claim for incidents that happened on or after March 6, 2023. Incidents are not limited to the actual sharing of images, but also the threat of sharing.^[9]

The Tribunal is an independent tribunal that does not conduct investigations or apply any criminal charges. However, it can make orders that are enforceable in court. There are three claims an applicant can make:^[10]

1. Intimate image(s) protection order: this Tribunal order would ask the person who shared the image to delete it, stop from sharing it, or if not yet shared, to stop threatening to do so.
2. Intimate image(s) damages claim: the Tribunal can order the person sharing the images to pay up to $5,000 in damages. Claims up to $35,000 must be made with the provincial court, or to the British Columbia Supreme Court for claims over $35,000.
3. Administrative penalty claim: the Tribunal can order the person sharing the images to pay a fine to the provincial government if they do not comply with a related Tribunal or court order.

Applicants are also required to provide evidence to support a claim, including the image itself. If the image is not available, other evidence can be gathered through items, including text messages or witness statements. These can help describe the image in question and how the revenge porn took place or was threatened.^[11]

Other supports and resources:

The British Columbia provincial government also launched the Intimate Images Protection Service (the “Service”) aimed at providing support and referrals to victims of revenge porn. These include advice and resources on how to remove intimate images posted online, as well as counselling and long-term support services. For children 18 years and younger, advice may also be given for other reporting options, as well as referrals to the Canadian Centre for Child Protection.^[12]

The Service can also assist with the Tribunal claims process described above, such as communicating with the Tribunal on the applicant’s behalf and filling out applications. The Service can also send a Tribunal order to the appropriate parties.^[13]

Takeaways

The IIPA is a welcome addition to help in targeting the rise of revenge porn incidents. It is also notable for its ability to address head-on the crucial task of taking down the images. The availability of the Service and related resources for victims of revenge porn are important steps forward to addressing immediate needs and concerns not readily available through the criminal process. For victims who are in fear of speaking out, the IIPA processes are a confidential and accessible way of taking action. Outside of the IIPA, other reporting processes are still available, including reporting to the police, schools, social media and adult sites.^[14]

For Ontarians, a similar act to the IIPA is not yet available. In 2016, an attempt at pursuing a civil claim in Ontario, Doe 464533 v. N.D., involved a man posting a private sex tape of an ex-girlfriend. While the original decision made headlines for being the first allowing a civil action for revenge porn and its order of damages, it was rejected by a later judge for failing to involve the participation of the ex-boyfriend. However, the original decision continues to resonate by the judge’s acknowledgment of severe harm caused by revenge porn to the plaintiff. This included damage to her personal and sexual integrity, which impacted her emotional and psychological health.^[15]

A recent Ontario Superior Court civil case also recognized a new tort of internet harassment. The case, titled Caplan v. Atas, involved a woman making numerous false statements online against her enemies. There, Atas’ online conduct was considered severe as it was intended “to cause fear, anxiety and misery.” Although not strictly about revenge porn, the Court referenced Nova Scotia’s legislation titled the Intimate Images and Cyber-Protection Act, its definition of “cyber-bullying”, and potential orders to redress harm caused by the non-consensual sharing of intimate images.^[16]  Whether revenge porn civil claims can be readily made in Ontario under this new tort remains to be seen.^[17]

For more information, please contact Roland Hung of Torkin Manes’ Technology and Privacy & Data Management Groups.

The author would like to acknowledge Torkin Manes Articling Student Herman Wong for his invaluable contribution in drafting this bulletin.

[1] RSBC 2023, c 12.

[2] RSC 1985, c C-46, s 745 at s.162.1(1).

[3] SC 2014, c 31.

[4] Statistics Canada, “Police-reported cybercrime, by cyber-related violation, Canada (selected police services) (27 July 2023), online < https://www150.statcan.gc.ca/t1/tbl1/en/tv.action?pid=3510000101>.

[5] Stacey Janzer, “More intimate photos shared without consent in P.E.I. than any other province: Stats Can” (31 July 2023), online < https://www.cbc.ca/news/canada/prince-edward-island/intimate-photo-without-consent-1.6921438>.

[6] 2017 BCSC 2361.

[7] Natasha Chettiar, “Revenge Porn – don’t press the send button! Your Options for Responding to Non-Consensual Image Sharing” (2018), online: <https://canlii.ca/t/sqw4>.

[8] Chad Pawson, “Act now in force in B.C. to help remove intimate images posted online without consent” (29 January 2024), online <https://www.cbc.ca/news/canada/british-columbia/intimate-images-act-b-c-civil-rights-tribunal-how-to-remove-images-1.7096179>.

[9] Civil Resolution Tribunal, “Intimate Images”, online: <https://civilresolutionbc.ca/solution-explorer/intimate-images/>.

[10] British Columbia, “Image removal reporting options” (last updated 29 January 2024), online: <https://www2.gov.bc.ca/gov/content/safety/public-safety/intimate-images/image-removal-reporting>.

[11] Ibid.

[12] British Columbia “Intimate Images Protection Service” (last updated 29 January 2024), online: <https://www2.gov.bc.ca/gov/content/safety/public-safety/intimate-images/intimate-images-support>.

[13] Ibid.

[14] “Image removal reporting options”, supra.

[15] 2016 ONSC 541 at paras. 51-52; Doe v N.D., 2016 ONSC 4920.

[16] 2021 ONSC 670 at para. 168; SNS 2017, c 7.

[17] HR Insider, “Revenge Porn – Know the Laws Of Your Province”, online: <https://hrinsider.ca/revenge-porn-know-the-laws-of-your-province/>.