A few weeks ago, I reported on the appeal-level decision in the case of “revenge porn” where a woman’s ex-boyfriend had posted explicit photos of her on a pornographic website and showed them to his friends, all without her consent. She sued him for civil damages to compensate for the resulting humiliation.
The existence of this type of case is not unexpected, but it’s not as prevalent as one might think. Despite the widespread use of social media, and the immediacy with which even ill-advised messages can be sent, there are surprisingly few court decisions that involve a person seeking civil damages for an internet-based invasion of privacy, whether through hacking, or by posting without the person’s consent.
Part of the reason might be the impact of the criminal law: In December 2014, the Canadian Criminal Code was amended to add s. 162.1(1). The provision makes it a crime if someone “knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person” knowing that he or she did not give their consent. The term “intimate image” is defined to include a visual recording, including a photographic, film or video recording, “in which the person is nude, is exposing his or her genital organs or anal region or her breasts or is engaged in explicit sexual activity”. On conviction as an indictable offence, the penalty can be up to five years’ imprisonment.
So far, there are only a small number of reported cases in which anyone has been charged with an offence under s. 162.1.
- In R v. P.S.D., a young man in a volatile, on-again/off-again relationship with a young woman was charged after he took partially-clad images of her without her consent. He also sent the pictures to two friends, with instructions that they should save them, all with the intent to cause her emotional harm. The blurry, poor-quality photos were taken with his cellphone, in a manner that clearly indicated she had not consented, and showed portions of the woman’s bare breasts. The man was given a suspended sentence, after being given 90 days’ enhanced credit for the 60 days he spent in pre-trial custody.
- In v. Calpito, the male accused, in his early 20s, confessed to having posted seven nude photos of his former girlfriend on Instagram after their romantic relationship had ended. The photos were viewed by the woman’s large circle of friends, and even by her employer. The woman described the devastating effect of his actions on her life and university studies. The man was sentenced to a conditional discharge with three years’ probation, together with restrictions on his internet use and a significant term of community service.
The enactment of this new criminal offence, with its potentially hefty sentence, has surely had a chilling effect on the need for civil remedies as well. It means that Canadian law is well-poised to thwart the impulses of spurned ex-lovers to wreak revenge on former partners by oversharing intimate images.
For the full text of the decisions, see:
R v. P.S.D., 2016 BCPC 400 (CanLII)
v. Calpito, 2017 ONCJ 129, 2017 CarswellOnt 340
