What is the offence of sharing online intimate pictures?

What is the offence of sharing online intimate pictures?

An intimate online image is any visual recording of a person who is nude or is exposing their genitals, anal region or breasts in an explicitly sexual activity, according to s. 161.1 (2) of the Criminal Code. At the time of the recording, there must have been “circumstances that gave rise to a reasonable expectation of privacy.”

You can be convicted of this offence if you published, distributed, made available or advertised an intimate image of a person and you knew they did not give their consent to that action. You can also be convicted if you were “reckless as to whether or not that person gave their consent to that conduct,” according to the Code.

The non-consensual distribution of intimate images can occur in various situations involving adults and youth. The two most common are when relationships end and the images are posted for revenge, or in cases of cyberbullying.

What is revenge porn?

During a relationship, partners may exchange intimate photos of themselves for personal reasons. But when the relationship breaks down, one of them may be motivated to send the revealing images to the other person’s family, friends or employers. They may also post the images on the internet as a form of revenge.

Revenge porn, or non-consensual pornography, describes the act of receiving an intimate image or video from someone and then distributing it without their consent. Non-consensual pornography can also describe hidden or secret recordings and pictures and videos stolen from an individual’s computer or phone.

How are intimate images used in cyberbullying?

Some people, especially youths, exchange intimate images with close friends and even strangers. They do not realize they are opening themselves up to cyberbullying attacks, where the other person threatens to share the photos with others unless the victim sends more images. Sharing intimate or sexual images or videos without the other person’s consent is a crime, no matter what the age of the person shown.

The law against sharing intimate images online without consent was added to the Code in 2015 after two young Canadian women were driven to suicide after they were cyberbullied and their intimate images were shared online.

What is the punishment for distributing intimate images?

If the charge is treated as an indictable offence the maximum sentence is five years in prison. Lighter sentences are given if the charge is prosecuted as a summary conviction. In addition, your computer, phone or other device used to share the image could be taken away. You could also be ordered to pay the victim for the cost to remove the intimate image from websites.

What are my defences to this charge?

Can the Crown prove who uploaded the original images?

If someone uses a public computer or an anonymous internet account to post intimate photos of someone else, it can be problematic to trace the images back to the poster. That is shown in a Canadian case involving a man and a woman who had been dating for a short time. According to court documents, she used Snapchat on her phone to forward five intimate photos of herself to him. When the relationship ended, those photos appeared on the internet.

The man claimed he had not seen those images until being shown them in his lawyer’s office. The police officer investigating the offence admitted that he “was unable to ascertain who posted these photos on the internet,” according to the judgement.

The judge acquitted the man of posting the intimate images, stating the Crown was not able to establish his guilt beyond a reasonable doubt. He added, “a reasonable doubt is a doubt based on reason and common sense; it is not imaginary or frivolous; it does not involve proof to an absolute certainty; and it is logically connected to the evidence or absence of evidence.”

The complainant consented to the release of the images

In some relationships the partners mutually agree to post intimate images of themselves online. As long as they were both over the age of 18 and freely agreed to these postings, this behaviour is not criminal, even if they later regret their decision.

Someone else posted the images

This defence is used when someone accessed your computer and distributed the images without your consent.

Your Charter rights were violated during the investigation.

Everyone is protected against illegal search and seizure. If police searched your computer without a warrant, I can ask the court to disregard any evidence they found.

The images were inadvertently shared

Their publication was not an intentional act on your part, so you did not have the mens rea or guilty intent needed to be found guilty.

The images served the public good

Section 161.1 (3) of the Code states that “No person shall be convicted of an offence under this section if the conduct that forms the subject-matter of the charge serves the public good and does not extend beyond what serves the public good.” It adds that it is a “question of law whether the conduct serves the public good.” This is a very difficult defence to raise. There are not many situations where posting intimate photos of someone without their consent is in the public good.

Contact me for assistance

During the pandemic, police forces across the country reported a sharp increase in the number of people charged with sharing intimate images online without consent. If you are facing this charge, contact me for a free consultation so we can discuss the options open to you.