Thoughts from our team
As a follow up to our blog post of April 18, 2018, a bill dealing with the distribution of intimate images was tabled in the House of Assembly this week. Bill 12, An Act Respecting the Protection of Intimate Images, was brought before the House of Assembly by the Honourable Andrew Parsons, Q.C., Minister of Justice and Public Safety and Attorney General for Newfoundland and Labrador. Identified by Minister Parsons a number of months ago as a pressing issue, this proposed legislation is responsive to the need to address the crime of distributing intimate images in the civil context.
Much like the laws in other provinces of Canada, the basic purpose of the proposed legislation is the creation of a tort that permits a civil claim for those who have had their intimate images (in which they had a reasonable expectation of privacy) shared without their consent. The proposed Newfoundland law shares many features with legislation already enacted in Alberta, Saskatchewan, Manitoba, and Nova Scotia, and provides a robust mechanism whereby survivors of this type of sexual violence can sue for damages, as well as an injunction, to compensate for their losses and to prevent against the further distribution of the image(s).
An interesting feature of the proposed Newfoundland legislation is that there is a “reverse onus” on the Defendant to prove that they had consent to share the intimate images. Typically, the burden of proof in tort actions rests squarely with the Plaintiff; that is, the person bringing the lawsuit must prove that it is more likely than not that an event occurred, and that the Defendant is responsible. Where a civil action is commenced pursuant to the proposed Newfoundland legislation, it is presumed that the intimate image was distributed without consent, and the Defendant bears the onus of establishing that he or she had reasonable grounds to believe the Plaintiff consented to the distribution. The benefit of this “reverse onus” for the Plaintiff is that it removes one element of the tort they must prove to be successful. This is a particularly important point in cases of this nature, as rarely will there be witnesses or independent evidence which could serve to prove whether consent was indeed given.
Another feature of the proposed legislation is that the court is empowered to award damages in several categories. General damages awards (usually explained as compensation for “pain and suffering”) are typically established based on precedent. So far, it does not appear that any civil actions have been decided in Canada pursuant to intimate images legislation (although there are presently cases before the courts). It will be interesting to see if any other civil matters hold precedential value for our courts, as well as damages ranges in new cases brought pursuant to this proposed legislation.
Not only are orders for monetary compensation available to successful Plaintiffs, the court is also empowered by the proposed legislation to impose an injunction to prevent the further spread of the image(s). This is crucial in the modern era where internet content replicates faster than it can be contained.
Another excellent feature of the proposed Newfoundland legislation is that the court has the ability to order that the perpetrator of sharing the intimate images account to the victim for any profits made subsequent to the sharing of the intimate images. This amount is not to be taken into consideration by the courts in awarding further damages, ensuring that Plaintiffs can be fully compensated for their losses.
Ultimately, Bill 12 responds to a pressing need to address the serious violation of privacy when intimate images are shared without consent. Minister Parsons has put forth an excellent piece of legislation that ensures that survivors can be compensated for their losses and limit the spread of the offending image(s). If you have any questions about the proposed legislation or wish to discuss initiating a claim, the lawyers at Budden & Associates would be pleased to consult with you.