Sharing intimate images without consent, AI and legal rights

Posted by Anne-Marie Langan on February 12, 2024
Person holding a small sign that says "Fake or Real"

Deepfake Images of Taylor Swift that have recently been shared through social media sites have renewed the debate about whether further legislation is required in Ontario to better protect people from having their intimate images shared without their consent (CBS, 2024). When a disgruntled ex-partner shares intimate images without consent this is often referred to as “revenge porn” as it is meant to harm the reputation of or attempt to control the target. The psychological consequences of this type of online harassment can be severe and longstanding and can include depression, anxiety, and suicidal ideation (Schmidt et al, 2023). Statistics Canada reported that in 2020 there was an 80% increase in reporting of intimate images shared without consent, many of whom were youth and young adults (BC, 2024). This is especially concerning given the reluctance most people have to reporting this type of cyberbullying to police.

Laptop that displays a picture of a person.

British Columbia recently enacted the Intimate Images Protection Act which provides civil remedies for whose intimate images have been shared without their consent.

In response to increased reports to police of incidents of “revenge porn” and “sextortion”, the Government of Canada passed legislation in 2015 to amend the criminal code to make it a criminal offence to share intimate images without consent. The Criminal Code of Canada[1] states that:The Government of British Columbia recently enacted the Intimate Images Protection Act which provides civil remedies for whose intimate images have been shared without their consent.

162.1 (1) 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

  • (a) of an indictable offence and liable to imprisonment for a term of not more than five years; or
  • (b) of an offence punishable on summary conviction.

 

The Government of British Columbia recently enacted the Intimate Images Protection Act[2] which provides civil remedies for those whose intimate images have been shared without their consent (Pawson, 2024). This Act has a provision requiring social media companies to remove such images and to destroy any existing copies or face a fine of up to $5,000 a day up to a maximum of $100,000 and a further $5,000 in punitive damages for the individual who shared the images (Pawson, 2024). Similar legislation has been passed by Manitoba[3], Nova Scotia[4], Alberta[5], Newfoundland and Labrador[6], Saskatchewan[7].

There is currently no legislation in Ontario that provides a similar right to take civil action against an individual or company who shares your intimate images without your consent but there is some case law[8] in which the sharing of intimate images without consent has been found to be tortious behaviour (Ramirez & Tseng, 2023). For example, in the case Yenovkian v. Gulian[9] the Ontario Superior Court awarded the Applicant mother $50,000 in damages for intentional mental suffering and a further $100,000 in damages for the tort of invasion of privacy because the Respondent father had engaged in a malicious campaign online against her which included sharing images of her, their children and the Applicant’s mother with a false narrative superimposed.

There is help for those who have been exposed to this type of cyberbullying, including (GOC, 2023):

  • Cybertip.ca provides information on staying safe online and how to report any concerns.
  • Project Arachnid. This program helps victims have their images removed if they are shared publicly
  • Don't Get Sextorted has information on staying safe and getting help
  • Need Help Now provides information on emotional support, reporting, helping a friend, and answering frequently asked questions
  • Public Safety Canada provides youth, parents and caregivers with educational resources on Online Dangers, including sextortion
  • The Canadian Anti-Fraud Centre has sextortion resources available to the public
  • The Department of Justice's Victim Services Directory can provide information on resources in your community available to victims of online child sexual exploitation

REFERENCES:

CBS Interactive. (n.d.). Taylor Swift deepfakes spread online, sparking outrage. CBS News. https://www.cbsnews.com/news/taylor-swift-deepfakes-online-outrage-artificial-intelligence/

British Columbia (Attorney General) (2024, January 29). New Services help people protect their intimate images. New services help people protect their intimate images. https://news.gov.bc.ca/releases/2024AG0004-000096

[1] Criminal Code of Canada R.S.C., 1985, c. C-46 https://laws-lois.justice.gc.ca/eng/acts/C-46/section-162.1.html

[2] Intimate Images Protection Act. [SBC 2023] CHAPTER 11

[3] The Intimate Image Protection Act, C.C.S.M. c. I87

[4] Intimate Images and Cyber-protection Records Act (SNS 2017, c. 7)

[5] Protecting Victims of Non-Consensual Distribution of Intimate Images Act (RSA 2017, c. P-26.9)

[6] Intimate Images Protection Act, RSNL 2018, c I-22

[7] Privacy Act (RSS 1978, c. P-24, as amended)

[8] Yenovkian v. Gulian, 2019 ONSC 7279 (CanLII), <https://canlii.ca/t/j4gqn>

[9] Ibid.

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