How will Québec's new law on non-consensual sharing of intimate images affect technology intermediaries?

Québec's government has enacted bold measures to tackle the non-consensual sharing of intimate images online, enhancing protection for victims.

On Nov. 28, 2024, Bill 73, an Act to counter non-consensual sharing of intimate images and to improve protection and support in civil matters for persons who are victims of violence, was adopted unanimously by Québec's National Assembly. The Act introduces civil remedies for victims of non-consensual intimate image sharing and expedites the removal of such content from online platforms.

While this Act presents certain similarities to the British Columbia Intimate Images Protection Act,^[1] it is important for companies that operate online platforms where videos or images can be hosted, or otherwise indexed, also known as "internet intermediaries," to be aware of certain key distinctions of this new Québec Act on their business. Here is a high-level overview of our key takeaways from Bill 73.

Defining "intimate images"

Bill 73 uses a broad definition of "intimate images," covering various forms of media depicting nudity, partial nudity, or sexual activity, including photos, videos, audio recordings, live broadcasts and AI-generated or altered content.

In comparison, British Columbia's Intimate Images Protection Act (the "BC Act") similarly defines intimate images as visual recordings involving nudity or sexual activity where there is a reasonable expectation of privacy, but it does not extend its definition to audio recordings.

Who does this concern?

The new legislation adopts a broad approach by allowing orders to be issued against all "persons" without further qualifying this term. Therefore, internet intermediaries could be on the receiving end of enforcement orders issued under Bill 73, particularly with regard to de-indexing and content removal.

In contrast, the BC Act carves out a specific limited liability regime for internet intermediaries.

What is the process?

Under Bill 73, complainants will be able to submit their application using a confidential form hosted on the Ministry of Justice's website. These applications can be made without providing notice to the other party, meaning that internet intermediaries may only be made aware of the application after a decision maker has made an order affecting them.

Applications are decided on an emergency basis, and if the decision maker agrees that an intimate image has been shared online without consent, it can order an internet intermediary to:

• Cease any sharing of the image
• Destroy the image
• De-index any hyperlink allowing access to the image

Who could be held liable?

Unlike under the BC Act, internet intermediaries are not subject to a specific limited liability regime under Bill 73, and they are treated as any "person" with the same potential liability, particularly:

• Internet intermediaries' obligations: Section 21 states that "a person who shared an intimate image without consent or who threatened to do so is bound to make reparation for the injury caused, unless they prove that they have not committed any fault." "Sharing" is defined in the new Act as "publishing, broadcasting, distributing, transmitting, selling, communicating, making available or advertising such an image."
• Personal liability of company representatives: Bill 73 explicitly establishes personal liability for directors, officers, and representatives of companies in cases of non-compliance with court orders under this law. If found liable, these individuals are considered parties to the offence and the penalty for these individuals is the same as that applicable to the company itself.
• Timeline for enforcement: There is no specified timeline regarding when a person has to comply with court orders under Bill 73. However, the bill does introduce a right to appeal/annul a court order if the allegations are insufficient or false within 30 days after receiving notification of the court order.

How much could failure to comply cost?

Failure to comply with a court order under Bill 73 may result in severe penalties for internet intermediaries including fines ranging from $5,000 to $50,000 per day with penalties doubling for repeat offenders, as well as the possibility of an 18-month maximum prison sentence for more serious cases.

What are other considerations?

In addition to regulating the sharing of intimate images without consent, Bill 73 also introduces the possibility for a person to revoke his or her consent to the sharing of an intimate image, with certain exceptions for commercial or artistic contracts unless the possibility of revoking consent was provided for therein or where it involves an adhesion contract (section 5).

Therefore, an internet intermediary who receives such a revocation must make every reasonable effort to ensure the image is inaccessible on their platform, failing which they could be held liable for any injury resulting from the image being made accessible or being shared.

While this article aims to provide an overview of the main risks introduced by Bill 73 for internet intermediaries, it is not exhaustive. We would invite any reader interested in finding out more about this proposed bill to consult the brief we submitted to the National Assembly for consideration, in which we identified a number of inconsistencies in the bill, in addition to proposing some changes that might help to readjust the problematic provisions of Bill 73.

Québec's Bill 73 is a game changer for internet intermediaries operating in this province. With swift enforcement, severe penalties and no adapted framework for internet intermediaries, this bill holds internet intermediaries directly accountable for hosting non-consensual intimate images on their platform even if they have made every reasonable effort to make such images inaccessible. Failure to comply could result in steep fines, reputational damage, and personal liability for officers and directors.

If you have any questions about this new act, do not hesitate to contact our Privacy & Cyber Security Group.