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Intimate Images & Cyberbullying – Assessing the Canadian Response

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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 criminal offence of distributing intimate images. One possible approach was to focus on the intention of the person distributing the image – that is, whether there was malicious intent.

The second possible approach would not focus on intention but rather the act of distribution – that is, the privacy violation. The Cybercrime Working Group recommended the second approach, in part, because there was a perception that requiring a specific intent would make the offence more difficult to prove in a prosecution. Whether that perception is justified is arguable.

In recommending the second approach, the Cybercrime Working Group also suggested that the new offence have two mental elements. First, the offence must be intentional. That is, accidental distribution of an intimate image should not be criminalized. The person must knowingly distribute the intimate image. This is not controversial.

Second, and controversially, the Cybercrime Working Group recommended that the knowledge component of the offence also include “recklessness”. That is, a person commits the offence if either (a) he or she knows that the person in the image did not consent to the distribution of the image or (b) he or she is reckless to whether the person in the image consents to the distribution.

In choosing a “reckless” standard, the Cybercrime Working Group made reference to jurisprudence establishing that “recklessness is found where a person is subjectively aware that there is danger that his conduct could bring about the result prohibited by the criminal law, and nevertheless persists, despite the risk.”

Bill C-13 Adopts the Reckless Standard

Bill C-13 follows the suggested approach of the Cybercrime Working Group. The proposed offence provision is as follows:

162.1 (1) Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty

 (a) of an indictable offence and liable to imprisonment for a term of not more than five years; or

 (b) of an offence punishable on summary conviction.

The reckless standard makes sense when one is dealing with the first recipient of the image. However, what about subsequent recipients who receive the image without any knowledge of the circumstances in which it was taken? What about the owner of the medium through which the image is “published”? Does this provision put every recipient on inquiry?

Expectation of Privacy

The Government has also added two provisions that may be directed at attempting to immunize this new criminal offence from a challenge based on the protections afforded to freedom of expression in the Charter of Rights and Freedoms.

The Cybercrime Working Group recommended that the definition of what constitutes an “intimate image” go beyond the content of the image and include the circumstances in which the image was taken. The Government’s proposed provision goes somewhat further than that recommendation. In order for the image to be an “intimate image”, not only must the content fit within the definition (no surprises as to what qualifies), the image must also have been taken in circumstances that gave rise to a reasonable expectation of privacy and the person who is depicted in the image “retains a reasonable expectation of privacy at the time the offence is committed.”

This seems to mean that an intimate image can cease to be an intimate intimate image if the individual has lost a reasonable expectation of privacy in it. Conversely, it seems that no matter how hard you try to keep control of an image taken in circumstances in which you did not have a reasonable expectation of privacy, that image will not qualify as an intimate image.

Arguably, this complicates what is already a complex offence. Judges will have to assess the “reasonable expectations” of the victim both at the time the photo was taken and the time that the photo was distributed. Does a judge have to consider who took the photo (and who was present when the photo was taken)? Does the judge have to consider whether a person have a reasonable expectation of privacy if she or he sends a photo over a social media site to a person with whom he or she is flirting but does not know?

The Public Good

The proposed provision also contains a “public good” defence. Importantly, one’s motives (good or bad) does not matter in addressing whether the distribution or publication of the intimate image was in the “public good”.

(3) 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.

(4) For the purposes of subsection (3),

(a) it is a question of law whether the conduct serves the public good and whether there is evidence that the conduct alleged goes beyond what serves the public good, but it is a question of fact whether the conduct does or does not extend beyond what serves the public good; and

(b) the motives of an accused are irrelevant.

“Public good” is not defined. However, relatively recently, the Supreme Court of Canada reviewed a “public good” defence in the context of the possession of child pornography in R. v. Katigbak, 2011 SCC 48.

The public good requires showing that the it is necessary or advantageous to religion or morality, to the administration of justice, the pursuit of science, literature, or art, or other objects of general interest. The defence is to be interpreted liberally. Whether the accused’s activities went beyond the public good requires an analysis of whether all of the accused’s actions are connected to the public good.

Typically we think of a defence as something that the accused must establish. However, the Supreme Court reaffirmed that this type of public good defence provision requires the Crown to prove that the circumstances giving rise to the defence are not present.

Bill C-13 is bound to be controversial, particularly given all of the investigation powers that have been bound up with this new offence. Stay tuned.

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