On January 29, 2024, British Columbia's Intimate Images Protection Act (Act) and Intimate Images Protection Regulation (Regulation) came into force. The Act is aimed at addressing the unauthorized distribution or threat of distribution of intimate images.
What BC's Intimate Images Protection Act and Regulation address
The Act defines intimate images as visual representations, and includes portrayals of individuals engaged in a sexual act, nude or nearly nude, or exposing genital organs, anal region, or breasts, where the individual has a reasonable expectation of privacy, either at the time of the recording or distribution, or at the time of simultaneous transmission. The Act establishes that an individual may still have a reasonable expectation of privacy in such images, even if the individual is not identifiable in them, or there have been alterations to the image.
Further, the reasonable expectation of privacy is not lost only if:
(i) The individual distributed the image,
(ii) The individual initially consents to distribution by someone else (consent can be revoked), or
(iii) The individual is deceased.
Under the Act, an individual can bring a claim if their intimate images are distributed without consent, regardless of whether they are identifiable in the images. This right extends to situations where there is a mere threat of distribution.
Notably, proof of damage is not required. Further, even if an individual had previously consented to the distribution of their intimate images, the Act grants an individual the authority to revoke consent at any time and for any reason. The person who distributed the images must then make every reasonable effort to make the images unavailable to others.
How the Act empowers individuals to seek the removal of intimate images
Individuals can apply to British Columbia Supreme or Civil Resolution Tribunal (the Tribunal) for expedited intimate image protection orders or damages. The Act empowers the court or Tribunal to issue comprehensive orders that include the deletion or destruction of all copies of intimate images in an individual's possession, along with a mandate for every reasonable effort to prevent the images' availability to others.
This includes orders to internet intermediaries to remove such images from their platforms, other electronic form, software, database and communication method, and de-indexing images from search engines. The court and Tribunal can also order "a person to provide any information necessary to further the objective of removal, deletion or de-indexing of the intimate image."
The Act defines an "internet intermediary" as an organization that hosts or indexes third party content through an online platform. This definition is broad enough to capture most technology and social media platforms.
The Regulation specify an administrative penalty for internet intermediaries capped at $5,000 per day for non-compliance with an order, with a maximum penalty of $100,000. The liability of an internet intermediary is limited if it has taken reasonable steps to address the unlawful distribution of intimate images in the use of its service. For individuals, the administrative penalty is capped at $500 per day for non-compliance with an order and a maximum of $10,000.
How British Columbia's legislation compares to the rest of Canada
British Columbia now joins a number of provinces with legislation specifically targeting the non-consensual distribution of intimate images, and in some cases, cyber bullying more broadly. For example, Nova Scotia, Manitoba, Prince Edward Island, New Brunswick, Newfoundland and Labrador, Alberta and Saskatchewan have already enacted legislation targeting unauthorized distribution of intimate images.
In Ontario, the Ontario Superior Court of Justice recently established a cause of action for claims arising from the unauthorized distribution of an individual's private information without their knowledge or consent. In Jane Doe 72511 v. Morgan, 2018 CarswellOnt 18310 (Ont. S.C.J.) (Jane Doe), the court confirmed a civil right of action for the public disclosure of private facts. Jane Doe builds upon the precedent set by Jones v. Tsige, 2012 CarswellOnt 274 (Ont. C.A.), which initially recognized the tort of intrusion upon seclusion in Ontario.
In Jane Doe, the plaintiff's ex-boyfriend distributed a sexually explicit video without her consent. The tort of public disclosure of private facts safeguards individual privacy by preventing an individual's private information from being published without their consent. A similar tort already exists in Alberta, Nova Scotia, and Saskatchewan.
We would observe that these statutes and torts are notable in that they apply to the actions of individuals acting in a personal or non-commercial capacity. Distribution of such images by organisations or enterprises, or federally, in a commercial context, would be subject to existing federal and provincial private sector privacy laws.
In Quebec, the provincial Charter of human rights and freedoms provides that everyone "has a right to respect for his private life." Moreover the Civil Code of Quebec establishes that every individual has a right to the respect of his reputation and privacy, which may be violated, among other things by using a person's name, image, likeness or voice for a purpose other than the legitimate information of the public.
As privacy laws evolve, individuals now have more avenues to pursue damages and legal remedies for the unauthorized dissemination of their private information, reflecting a significant step in safeguarding privacy rights in the digital era.