Trigger warning: discussion of revenge porn
In Canada, distributing intimate images without consent is a criminal offence punishable by up to five years in prison, with legal avenues to sue an individual who distributes these images. However, the current legal landscape for dealing with revenge porn has a blindspot.
The non-consensual disclosure of intimate images, also known as revenge porn, is an issue in Canadian society that is largely gendered, with women comprising the vast majority of victims.
The typical victim finds a nude image of them being distributed on the internet or between members of their community. This can be incredibly embarrassing, psychologically damaging, pose problems for employment, and harm relationships with family and friends.
Hilary Young is a Law Professor at the University of New Brunswick, and Emily Laidlaw is a Law Professor at the University of Calgary. Both professors worked with the Uniform Law Conference of Canada (ULCC) to develop a new way of dealing with revenge porn.
“A victim typically has to hire a lawyer, and it takes a long time before they get a day in court. The remedy is usually an award of monetary damages,” states Young, explaining that the problem is the remedy or court award.
Receiving monetary compensation is a good thing, but most victims just want the content taken down quickly. The current landscape does not allow for this, as victims will need to engage in lengthy legal proceedings and will often need to hire a lawyer to navigate the process.
The proposed law will allow a fast-tracked process for dealing with revenge porn. The victim must simply satisfy the court that an intimate image of them has been distributed and identify the person who distributed it.
Doing so simply requires an affidavit (sworn statement) – the victim does not need legal representation, and the process will be much faster than traditional legal proceedings.
“The Court can order Facebook, Google, or other companies to take the image down. The Court can also order the de-indexing of search results,” says Young, explaining that the judge will be given a wide discretion for different orders.
Furthermore, the Court can order the distributor to make best efforts in deleting the image. In short, there are many ways a Court can have the images removed from the internet.
Young acknowledges that there are still ways for the image to be visible online, but these remedies make it much more difficult to find.
“We do not want the perfect being the enemy of the good. These remedies are still quite beneficial for victims,” explained Young.
One challenge faced by Young and Laidlaw was how to define “intimate image,” and they spent hours determining how to define that category.
Through their definition, an “intimate image” means a visual recording of an individual, whether or not the individual is identifiable and whether or not the image has been altered in any way, in which they are engaging in a sexual act or are nude or exposing themselves.
The individual would have had a reasonable expectation of privacy at the time the recording was made and, if the recording has been distributed, at the time it was distributed.
Notably, the definition includes altered images known as “deep fakes” and unidentifiable images.
The rationale is that victims of distributed deep fakes or unidentifiable images still suffer mental distress. A person may worry that an unidentifiable image will become identifiable in the future, and the fact that it is not identifiable should not deprive them of a legal remedy.
The ULCC puts legal drafters together with subject-matter experts like Young and Laidlaw to draft model legislation. As of now, the new law was adopted by the ULCC, which means it will be placed in front of each province for consideration.
An already drafted, workable piece of legislation reduces political friction and increases the chance a province will put it into force. Young and Laidlaw hope their revenge porn solution becomes law around the nation.