Written by Martin P.J. Kratz
Alberta joins those provinces and the Federal government who have enacted protection for intimate images to provide a legal framework to protect those who have such images wrongfully distributed.
Under the Act, Protecting Victims of Non-Consensual Distribution of Intimate Images Act, SA 2017, cP-26.9, which comes into force in August 2017, a person distributes an intimate image if that person knowingly publishes, transmits, sells, advertises or otherwise makes the image available to a person other than the person depicted in the image.
Once in force, it will be a tort for a person who distributes 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. "Intimate image" is defined as a visual recording of a person who is nude, exposing genitals or anal region or her breasts or is engaged in sexual activity where the recording was made in circumstances that gave rise to a reasonable expectation of privacy in respect of that image, and, if distributed, where the subject of the image retained a reasonable expectation of privacy at the time it was distributed.
Action for the distribution of an intimate image without consent can be brought without requirement to prove damage. Remedies include a range of damages including aggravated and punitive damages, accounting of profits, injunctive relief and such other order as the court might consider just. The court also expressly has the power to make a publication prohibition order.
If the defendant is also a child (defined as under 18), the parents of that child are not jointly and severally liable unless the parent directly participated in the distribution of the intimate image without consent.
The Act goes on to confirm that the subject in an intimate image does not lose an expectation of privacy in the image if that person consented to the making of the image or 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.
There is a limited public interest defence available but only if the distribution does not extend beyond what is in the public interest.Bill 202 complements recent amendments to the Criminal Code in Bill C-13, Protecting Canadians from Online Crime Act, S.C. 2014, c. 31, which added a new section 162.1 and similar legislation in provinces such as Manitoba's Intimate Image Protection Act, CCSM c I87.