BC's Proposed New Law to Fight Revenge P*rn and Sexual Image Based Abuse

Sexual-image based abuse is becoming a growing concern in the age of social media. Our firm has been closely following the latest developments in this area of law to explain what it all means, and where the law currently stands.

Sexual-image based abuse involves the non-consensual disclosure of your intimate images, regardless of whether you sent them to someone or whether they were taken without your permission. In colloquial terms it is often referred to as “revenge p*rn”, “non-consensual p*rn”, or “sexual image-based abuse”. This can include situations where an ex-partner takes intimate images or videos that were shared during the relationship and releases them online, to friends, to an employer etc. It can also include instances when someone accesses your device, steals your intimate photos or videos, then discloses them to others or on a platform. In other instances, it can include when someone takes photographs or videos without your knowledge or consent and distributes them.

The rise of social media apps such as WhatsApp, Instagram, Snapchat and TikTok, has dramatically increased the ease and simplicity with which sexual-image abuse can take place. The effects on its victims are extremely damaging and sometimes overwhelming. According to Statistics Canada, reports of this kind of abuse have been increasingly steadily year after year since 2014 or so.[1] Further, according to some US based sources:

-          An estimated 1 in 12 US adults reported they have been victims of image based abuse;

-          Young people ages 15-29 are most likely to report being threatened by revenge p*rn sharing;

-          Young people ages 18-29 are most likely to report having had intimate photos publicly posted of them without their consent; and,

-          Many victims of this kind of abuse experience severe and disruptive mental health effects including PTSD, anxiety, depression, suicidal thoughts.[2]

While reporting this kind of abuse to the police is one option, this falls short of resolving the problem as there is no direct Criminal Code offence to address this problem (although related offences exist). There are also other drawbacks: a criminal charge may not proceed, and the victim has no control of steps that are to be taken by the police. Traditionally, when this happens with other types of cases (ex. assault and battery), victims can turn to civil law to seek a remedy like damages (i.e. money) or an injunction (i.e. a court order to stop something from happening). Unfortunately, there is currently little or no specific protection in BC civil law for victims of this kind of image-based abuse. Currently, victims of such abuse would have to seek alternative litigation remedies through, for example, a breach of privacy lawsuit under the Privacy Act. While this provides some options for victims, these lawsuits can be slow-moving and the remedies or damages available may fall short of what is needed to make amends for the harm experienced.

The BC government is seeking to address this issue through the introduction of new legislation. The Intimate Images Protection Act was announced on March 6, 2023. However, BC is far from the first jurisdiction in Canada to introduce this kind of legislation as other jurisdictions in Canada (see: Nova Scotia, Alberta, Ontario, Saskatchewan, Manitoba) had introduced similar legislation years ago, as early as 2018. While the BC government announced it was looking to introduce this law in 2021, it is not clear what led the legislature to delay this while people continued to be victimized, especially with some reports indicating that this kind of abuse increased substantially during the pandemic.[3]

Regardless, the bill has finally been introduced in parliament and gone through its first reading. We have reviewed the bill and our preliminary view is that if it passes, the legislation will finally be a step in the right direction to provide better options to victims in the following ways:

1.       It extends protection to images that have been altered and images in which the individual is not identifiable – this would suggest some protection in cases involving blurred faces or so-called ‘deep fakes’.

2.       The legislation recognizes that consent is revocable, meaning that even if a person consents to a photo or video being taken at the time, that consent can be revoked which would trigger an obligation on the person who is seeking to distribute the image to make every reasonable effort to make the image unavailable to others (s. 4, 9). Further, consent at the time of recording may not be enough, it may be required at the time of distribution as well. 

3.       A decision maker (meaning court or tribunal) will have the power to make injunctive relief under section 5 of the legislation to:

a.       Order that the person who distributed the intimate image must delete or destroy all copies in their possession or control, and “make every reasonable effort to make the intimate image unavailable to others”, including by having it removed from any platform operated by an internet intermediary and from any other electronic form of application, software, database and communication method, and having the intimate image de-indexed from any search engine;

b.       Order an internet intermediary or other person or organization to (i) remove the intimate image from any platform operated by the internet intermediary and from any other electronic form of application, software, database or communication method, (ii) delete or destroy the intimate image, and (iii) de-index the intimate image from any search engine;

Section 5, in our view, is significant in at least two ways. Firstly, it will shift the practical burden from the victim who often has to remove images and videos from the internet and elsewhere. Presently, victims often describe having to undertake an exhaustive and constant search on their own to have their non-consensual images/videos removed from the internet or search platforms. Section 5 grants the court the power to place that burden upon the perpetrator rather than the victim. Further, it is also significant that an application to seek the orders under section 5 may be made “without notice”. This is a powerful tool as the ability to make a without-notice application means that a victim can get in front of a decision maker to try to get these orders much faster than most current options provide.

4.       Section 6 offers a statutory basis to claim compensatory, aggravated, punitive, and any “prescribed damages”, in accordance with any regulations. This would mean that a person can claim for various losses they may have sustained including, potentially, a loss of income that resulted from the sexual image abuse.

5.       Section 7 allows claims to be brought on behalf of deceased individuals. Tragically, some cases have resulted in victims taking their own lives as a result of the abuse. This section would give a right to that person’s family members to bring claims under the Act.

6.       It allows for the identity of the victim to be protected through a publication ban that is available in a relatively wide array of circumstances.

This act takes some major steps in the right direction, but there are some gaps. The act does not clearly address potential enforcement or jurisdiction issues that may arise after an order has been made. Specifically, its not clear how enforcement will be achieved when images or videos have been placed on a website or platform that is not based in British Columbia, Canada, or any reciprocating jurisdiction. It may be that this could be achieved through the de-indexing provisions of the act, but that remains unknown. The movement of the act through the legislature towards becoming law is a positive step forward for victims of sexual-image abuse who to date have had very limited options for seeking justice. We will continue to monitor the bill as it progresses.

For more information about removing images or videos of yourself after they have been released without your consent, contact us here: http://www.apnalaw.ca/contact-apnalaw.

[1] https://www150.statcan.gc.ca/n1/pub/85-002-x/2022001/article/00013-eng.htm).

[2] https://fightthenewdrug.org/need-to-know-facts-about-revenge-porn/

[3] https://vancouversun.com/news/local-news/as-revenge-porn-spikes-during-pandemic-b-c-aims-to-crack-down-with-legislation