Controlling Privacy Violations: Canada’s Privacy and Revenge Porn Laws

The holidays are finally over.

It started for most of us with a nerve-racking family dinner and ended with a New Year’s Eve party where we drank away the stress of having to spend too much time with our relatives. Many of us spent the eve of the New Year drunk and partying and it’s likely that at least a third of us engaged in some kind of behavior that night that we now regret. Most of this is not blackmail-worthy, but in a world where lives are ruined by crimes like revenge porn, it’s important to know what laws are in place to protect us.

Revenge porn is the publication of explicit images, videos, or films of a person without consent in a situation where the victim would have a reasonable expectation of privacy. Though revenge porn at its root is used to cause the victim distress, it’s often redistributed by some porn sites for commercial gain.

Fortunately, Canadian law is on it and has been working to tackle this crime.

Before 2014 the people in Canada who distributed intimate photos or videos of others without their consent could only be charged under the Criminal Code’s provisions on voyeurism, extortion, obscene publications, criminal harassment, defamatory libel, and in some cases child pornography. Unfortunately these laws have very specific requirements to get an indictment and conviction.

For example, extortion requires that the intimate material be used as a threat to force the victim to do something. Criminal harassment requires that the conduct make the victim fear for their safety or the safety of a loved one.

Sometimes charging people under these offenses worked, and sometimes it did not.

The people who drove Rehtaeh Parsons, a Halifax teen, to suicide in 2013 were charged with the distribution of child pornography. Parsons hung herself after photos of her being sexually assaulted by four boys circulated through her school resulting in texts and Facebook messages calling her a slut and soliciting her for sex.

Though none of the boys who assaulted her were charged with rape due to insufficient evidence, two of her attackers who filmed her later pled guilty to child pornography charges and were put on probation. Many agree this is hardly a sufficient punishment for people who drove an innocent young woman to her death.

Fortunately in 2014 the Canadian Criminal Code was amended to include article 162.1 regarding the unlawful publication of intimate images without consent.

It defines intimate images as a photo, film, or video where the victim is nude, exposing their genitalia, anal region, or breasts or is engaged in explicit sexual activity in circumstances where a person would have a reasonable expectation of privacy. A trip to the bathroom to use the toilet or shower is an obvious example of circumstances where most people would have a reasonable expectation of privacy.

The new law says that everyone “who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty.”

That means that it doesn’t matter whether the person transmitting the image or video intended to cause the victim harm. All the crime requires is that the person knowingly made the material available and they either knew or were aware of the possibility that the image or video was taken without the victim’s consent and distributed it anyway.

Those guilty of this offense are looking at a maximum prison term of five years. Or if they get a summary conviction, a maximum of six months in jail and/or a two thousand dollar fine.

The law limits the kinds of defenses one can use against such a charge. The motives of the accused are considered irrelevant. The only way to get out of a charge under this law is to either prove you didn’t do it, or prove that your conduct somehow served the public good but did not go beyond the minimum required to do so.

This defense was clearly added to the law to protect journalists and investigators in the execution of their professions. A journalist who snaps and distributes a photo of a politician with a sex worker when the politician is anti-prostitution could find himself charged under this act, but could conceivably argue that his actions were for the good of the public and not excessive.

If criminal charges are not laid in the face of the distribution of a person’s intimate images, in Quebec you can always sue the distributor.

The Quebec Civil Code (“the Code”) guarantees the individual right to privacy and protects people from invasions of their privacy without their consent.

As per the Code, the following are particularly considered invasions of privacy:

  • Entering your home and taking something
  • Intentionally intercepting or using your private communications
  • Appropriating and using your voice or image while you are in a private place
  • Keeping your private life under observation by any means
  • Using your name, image, likeness, or voice for any purpose other than the “legitimate information of the public”
  • Using your correspondence, manuscripts, or personal documents

If your privacy is violated in this way resulting in physical, material, or psychological damages, you can sue the perpetrator. The catch is that lawsuits are costly and invasive and it would mean going public with the extent of the violation you experienced.

The laws in Canada regarding revenge porn and privacy are not perfect, but they’re there. In 2017, let’s protect ourselves and keep the scum of society in check.

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