Victim of Non-consensual Pornography? The Law Can Help.

Has an intimate image of you been shared without your consent? If so, you’re not alone. It’s an unfortunate reality in today’s society: approximately one out of every 25 North Americans have been a victim of non-consensual imagine sharing according to a recent study by the Data and Society Research Institute.

This is commonly termed non-consensual pornography or “revenge porn”. Technological changes make this easy and, unfortunately, increasingly common. Technology allows for the dissemination of photographs and videos at the touch of a button.Problems arise when (1) the information disseminated is sensitive and extremely personal; and (2) it is disseminated without consent.

Fortunately the law is ever-evolving and continues to change along with technology. In the case of non-consensual pornography, the law has recently changed to allow victims a legal remedy. You can now do something about it!

In Doe 464533 v N.D., 2016 ONSC 541, the Ontario Superior Court of Justice recognized a new tort called “breach of confidence”. This is a ground-breaking decision that filled a gap in the law. The case stemmed from an action for damages brought by a woman against her ex-boyfriend after he posted a sexually explicit video of her on an internet pornography website. The video was available online for about three weeks, and was seen by many people, before the woman realized it had been published. She was understandably crushed and horrified; the woman suffered from depression, panic attacks, and emotional turmoil which lasted a few years after the incident. But she found the strength to fight back!

The Court decided that the woman’s harms, resulting from the obviously wrongful action, must be appropriately compensated. This required the Court to recognized a new tort called “breach of confidence”. The new law requires three elements to be proven in such claims:

1. The information must have the necessary quality of confidence (meaning, the information is private and personal and not otherwise publicly available);
2. The information must have been disclosed in circumstances where there is an obligation of confidence (meaning, there was a direct promise to keep the “information” private, or the circumstances that make it clear that the information was intended to be confidential and not meant to be circulated widely without express consent); and
3. There must have been an unauthorized use of that information to the detriment of the party communicating it (the “detriment” can be in the form of economic losses or psychological and emotional harm).

To compensate for the emotional harms caused by the posting of the “revenge porn”, the Court ultimately awarded the woman $100,000 in damages. The Court wrote the following:

I wish to commend the plaintiff for her courage and resolve in pursuing the remedies to which she is entitled. She has experienced considerable psychological pain arising from the events in question, and has been called upon to relive and recount these events in the course of this litigation, thereby reviving painful memories. Given the lack of precedent in Canadian law for such a claim, she had no assurance of the outcome. Quite apart from the personal result for her, her efforts have established such a precedent that will enable others who endure the same experience to seek similar recourse.

This decision is welcome news to victims of non-consensual pornography. It also serves as a clear warning to acts as a clear warning to those who may think it appropriate to post private intimate images of another online.

If you or a loved one have been victim of non-consensual pornography, don’t hesitate to reach out to us for a free consultation to discuss your options.