Wednesday, May 10, 2017

Alberta law provides civil remedies for cyberbullying victims

Tort regarding non-consensual distribution of intimate images supplements recent criminal amendments

The Alberta legislature has passed a bill to provide civil remedies for victims of the non-consensual distribution of intimate images. Bill 202, Protecting Victims of Non-Consensual Distribution of Intimate Images Act, creates a new civil cause of action for what has become known “revenge porn” or non-consensual pornography. When the law comes into effect, in August 2017, it will be actionable in the province, without proof of harm, for anyone to distribute “an intimate image of another person knowing that the person depicted in the image did not consent to the distribution, or is reckless as to whether or not that person consented to the distribution”. The statute builds upon the criminal provisions for such actions added to the Criminal Code in Bill C-13 and closely follows the similar statute in Manitoba, the Intimate Image Protection Act.

An “intimate image” is defined as an image or video in which the person depicted is nude or includes the breasts, genitals or anal region, or depicts explicit activity. It is further defined with reference to the expectation of privacy that existed at the time the image was created or distributed:

(ii) which was recorded in circumstances that gave rise to a reasonable expectation of privacy in respect of that image, and

(iii) if the image has been distributed, in which the person depicted in the image retained a reasonable expectation of privacy at the time it was distributed;

Importantly, that expectation of privacy is not necessarily lost if the image was taken by another person or was given to another person where it was not to be further distributed:

Expectation of privacy
5 In an action for the distribution of an intimate image without consent, the person depicted in the image does not lose the expectation of privacy in respect of the image if that person
(a) consented to another person recording the images, or

(b) provided the image to another person,

in circumstances where that other person knew or ought reasonably to have known that the image was not distributed to any other person.

The bill also contains a public interest defence, which is similar to that found in the Criminal Code for other pornography and obscenity offences. Also of note, if the defendant in an action under the new law is a child, the statute specifically deems that the parent of the defendant will not be jointly and severally liable unless the parent “directly participated” in the distribution of the image.