Intimate Images and Cyber Protection Act
The age of social media has seen a rise in cyberbullying and the sharing of intimate pictures. In 2015, section 162.1(1) was introduced to the Canadian Criminal Code. This section specifically deals with the publication of an intimate image without consent and specifically targets cyberbullying.
The tragic death of 17-year-old Rehtaeh Parsons in 2013, inspired the drafting (and re-drafting) of a new law in Nova Scotia, that came into force in 2018. The recent Intimate Images and Cyber Protection Act, 2017, c.7, s.1, (the “Act”) offers victims of cyberbullying, and what is often referred to as ‘revenge porn’, a means to seek civil remedies in Court rather than simply relying on criminal proceedings.
The various remedies that the Act allows for victims of cyberbullying and revenge porn include, among other things:
(a) an order prohibiting the person from distributing the intimate image;
(b) an order prohibiting the person from making communications that would be cyber-bullying;
(c) an order prohibiting the person from future contact with the applicant or another person;
(d) an order requiring the person to take down or disable access to an intimate image or communication;
(e) order the person to pay general, special, aggravated or punitive damages to the person depicted in the intimate image or the victim of cyber-bullying.
Damages paid to a victim of cyberbullying would not only act as a punishment to the individual choosing to cause harm, but also as a way to compensate the victim for their pain and suffering, acknowledge the effect of the harm, and provide compensation for any necessary treatment as a result of the harmful actions, such as psychological counseling.
Factors Taken into Account
In making an order such as one of the above, a Court must consider many relevant factors such as:
- the content of the intimate image or cyber-bullying;
- the manner and repetition of the conduct;
- the nature and extent of the harm caused;
- age and vulnerability of the person depicted in the image or victim of cyberbullying; and
- the purpose or intention of the person responsible for the distribution of the image or the cyber-bullying
These and other factors are specifically enumerated in the Act, and will determine the kind of order made, and the amount of damages awarded to the victim.
Defining “intimate image”
An intimate image is defined in the Act as a “visual recording of a person made by any means, including a photograph, film or video recording,”:
(i) in which a person depicted in the image is nude, is exposing the person’s genital organs, anal region or her breasts, or is engaged in explicit sexual activity,
(ii) that was recorded in circumstances that gave rise to a reasonable expectation of privacy in respect of the image, and
(iii) where the image has been distributed, in which the person depicted in the image retained a reasonable expectation of privacy at the time it was distributed;
Expectation of Privacy
Simply consenting to have an intimate video or picture taken, or sending an intimate picture to another person, does not mean that you give up your privacy rights in relation to the image or video in question. As long as circumstances were such that the person making or receiving the recording, or taking or receiving the picture, knew or should have known that you were not consenting to its distribution to any other person.
For example, simply allowing a partner to take an intimate photo, when you gave him/her no reason to assume they were allowed to share the picture with others or distribute it in any way, does not diminish your expectation of privacy in said picture.
Effects of Cyberbullying
The effects of cyberbullying are harmful to the psychological and physical health of an individual, particularly young persons. According to a recent study, young victims of cyberbullying, are twice as likely to attempt suicide and self-harm.
With the Act in effect in Nova Scotia, victims of cyberbullying and revenge porn can now seek justice both through the criminal system, as well as the civil one. The Act should also, hopefully, serve as a deterrent, to those that wish to cause harm to a person through cyberbullying, and revenge porn by holding them accountable, both criminally, and financially.
Legal Help for Cyberbullying
If you or someone you know needs more information about how you could be awarded damages for the breach of your privacy, contact Valent Legal. Don’t hesitate, your case review is free and we have a 100% Guarantee.