"Revenge Porn": The Non-Consensual Sharing of Intimate Images

The Honourable Andrew Parsons, Minister of Justice, recently announced the creation of legislation to deter the non-consensual sharing of intimate images in Newfoundland and Labrador. So-called “revenge porn” laws have become increasingly important in recent years given the ubiquity of digital devices and ease of online distribution.

In 2015, the Federal Department of Justice made it a criminal offense to knowingly publish, distribute, transmit, sell, make available, or advertise an intimate image where the person depicted has not consented to same. Perpetrators of these crimes may face incarceration and fines (Criminal Code, RSC 1985, c C-46, s. 162.1).

While the criminal law effectively deals with denouncing and deterring this conduct, it has a limited ability to deal with the very real and damaging consequences to victims of this criminal behaviour. This is where effective legislation regarding the non-consensual sharing of intimate images is crucial.

A number of provinces in Canada have already legislated on this issue, and Newfoundland and Labrador would be well-served to emulate the robust legislation already in place in other provinces in Canada.

In 2017, the province of Alberta implemented the Protecting Victims of Non-Consensual Distribution of Intimate Images Act, 2017 SA, c P-26.9. The legislation creates a tort for the distribution of intimate images in the absence of consent, and makes it clear that consenting to being filmed, and even consenting to send the photo to a partner, does not mean that the person depicted in the image loses their expectation of privacy with respect to the intimate image.

The Alberta Act further provides for a number of remedies for aggrieved persons, including financial compensation, as well as empowering the Court to grant injunctions to prevent the further spread of the images. Should the perpetrator have made any financial gains as a result of sharing the image, the Alberta Act also allows for the Court to order that the Defendant account to the Plaintiff for any accrued profits.

Another important feature of the Alberta legislation is that it expressly authorizes the Court to make an order prohibiting the publication of the name of a party to the action. For individuals whose privacy has already been grievously assailed by the sharing of intimate images, measures to protect any further privacy breaches are important and ensure that these individuals can come forward without fear of public scrutiny.
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The power dynamic between perpetrators of sexual crimes and their victims is not new, but “revenge porn” is a modern way in which perpetrators are wielding power over their victims. Legislation preventing the sharing of intimate images is an essential and positive step forward in empowering victims of sexual crimes.

-Allison Conway