In an increasingly digital world, the number of online content creators is on the rise. Posting and sharing an image or a video online takes mere seconds. Such ease, combined with the lightning-fast speed with which these posts are shared, copied and dispersed through the Internet, makes for a problematic combination when it comes to non-consensual sharing of intimate images. For example, in a report by Statistics Canada, there was an 80% increase in the number of incidents related to non-consensual sharing of intimate images in 2020.
To combat the harms of sharing intimate images without consent, on March 30, 2023, the BC Government passed the Intimate Images Protection Act (the "Act").1 The Act provides a streamlined process through which individuals may seek orders against the non-consensual sharing of their intimate images.
To what does the Act apply?
The Act applies to "intimate images", which are broadly defined as visual recordings or representations of an individual where:
- the individual is engaging in a sexual act, or depicted as such;
- the individual is nude or nearly nude; or
- the individual's genital organs, anal region, and/or breasts are exposed.2
"Intimate images" include pictures, videos, livestreams, digitally altered images, and deepfakes. As Artificial Intelligence ("AI") becomes more prevalent, so too are AI-generated images, which are also captured by this broad definition.
The individual must also have had a reasonable expectation of privacy at the time the recording or image was made and, if distributed, at the time of the distribution. This threshold will likely be met reasonably easily in situations involving intimate images given the personal and sensitive nature of such images.
How does the Act work?
An individual whose intimate images are distributed without their consent may bring a claim under the Act. However, an individual also has the right under the Act to bring a claim even before any such intimate images are distributed. The mere threat of distribution also amounts to an unlawful act. In addition, in both scenarios, proof of damage, such as an adversely impacted reputation, is not necessary.
It is important to note that while an individual may have consented to the distribution of their intimate images in the past, an individual may revoke their consent at any time and for any reason. Upon revocation of consent, the distributor of the images must make every reasonable effort to remove the images online. Failure to make every reasonable effort would amount to an unlawful act.
Claims are made to the Civil Resolution Tribunal (the "Tribunal"), which retains the statutory authority to order the immediate removal of the images in addition to other orders as the Tribunal sees fit. These orders include, but are not limited to:
- destroying or deleting all copies of the images;
- ensuring the images are unavailable to others;
- removing the images from all electronic forms; and
- de-indexing the images from any search engine.3
Note that the Tribunal's orders are not limited in their application simply to the wrongdoer or the distributor of the images. The Tribunal may make orders against the "internet intermediaries," which are broadly defined as organizations that host or index third party content through an online platform.4 Technology and social media companies that operate online platforms where third parties may post images or recordings are captured by this definition.
The Tribunal also has the authority to order damages, including compensatory, aggravated, and punitive damages, and it has the right to issue administrative penalties for failure to comply with its orders.
What does this mean for Content Creators and Online Platforms?
For content creators, the passing of the Act heightens the need to ensure that the content of their posts do not qualify as an intimate image as defined above. The Act does not require that the intimate image of an individual be the focal point of the post itself, nor does it require that the content creator post the image for the sole reason of sharing the intimate images of an individual. So long as the post qualifies as an intimate image, content creators may be subjected to orders and damages under the Act.
Technology and social media companies that run online platforms where third parties may post materials should also pay careful attention to the Act. As indicated above, the Tribunal may order such companies to remove intimate images from their online platforms, and failure to take every reasonable effort to do so would amount to an unlawful act. Technology companies should review their internal operations and ensure that they have an efficient and effective way of removing such images when needed.
The Tribunal's ability to award punitive damages is also of particular importance. Punitive damages are often awarded to dissuade the public from committing similar or identical legal violations. The availability of such damages, combined with the fact that the BC government passed the Act in less than a month since its introduction, indicates that there is a real concern to address this ever-growing problem of non-consensual sharing of intimate images. The factors to assess the amount of punitive damages will be outlined in future regulations, but content creators and technology companies should be mindful that there is a concerted effort to dissuade such sharing of intimate images, and failure to adhere by the Act may prove costly.
1. Intimate Images Protection Act, RSBC 2023, c 12 [IIPA].
2. Ibid, s 1.
3. Ibid, s 5.
4. Ibid, s 1.
The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.
© McMillan LLP 2021