Intimate Images & Cyberbullying – Assessing The Canadian Response

Earlier this week, the Canadian government introduced Bill C-13, Protecting Canadians from Online Crime Act. The proposed legislation covers a lot of ground, including the introduction of a suite of new investigation powers (warrants and production orders).

This post deals with one aspect of Bill C-13, which is the attempt to address the scourge of "revenge porn". Other aspects of Bill C-13 will be dealt with in subsequent posts.

Revenge Porn

Revenge porn involves the online distribution of sexually explicit photos without the consent of the individual for the purpose of harassing or humiliating the individual.

There is no question that non-consensual distribution of intimate images is a serious problem. An individual may consensually provide an intimate photo (or video) to a partner or a person with whom the individual has or wishes to have a sexual relationship for the sole purpose of the personal viewing of the recipient. In other cases, the photo (or video) may have been non-consensual from the outset, having been taken in circumstances in which the individual was intoxicated or as of the result of coercion.

Criminal Law is a Blunt Instrument

Whether the original image results from misplaced trust in a partner, a lack of judgment, deliberate risk taking, or coercion, the act of distributing intimate photos or videos without consent can have serious social and economic consequences for the individual whose image is being circulated.

However, criminal law is a blunt instrument to deal with these problems, and Bill C-13 is no exception. The legislation would criminalize any distribution of intimate material without consent irrespective of the motives of the individual who distributes the material.

Perhaps in an attempt to balance issues of freedom of expression, Bill C-13 requires the victim to have had a reasonable expectation of privacy both at the time that the image was taken and at the time the image is distributed. Even then, the distribution of the image will not be criminal if it is for the "public good".

The Cyberbullying Report Recommendations

Bill C-13 follows from a report on Cyberbullying and the Non-consensual Distribution of Intimate Images (Cyberbullying Report) prepared by the Federal-Provincial-Territorial Officials Cybercrime Working Group and delivered to the Federal, Provincial and Territorial Ministers in June 2013.

In the Cyberbullying Report, the Cybercrime Working Group examined two possible approaches to a new...