Section 162.1 of the Criminal Code of Canada covers the Publishing of Intimate Images Without Consent charge.
The provisions make it an offence to knowingly publish, distribute, transmit, sell, make available, or advertise an image of a person knowing that the person depicted in the image did not give their consent to the conduct – i.e. the publication, distribution, transmission etc. Even if a person did not subjectively know of the absence of consent, being reckless as to whether or not the person depicted in the image consented to the publication or transmission etc. of the image also constitutes an offence.
The provisions only capture the distribution, transmission etc. of “intimate images” which the act defines as an image in which the person is nude, is exposing his or her genital organs or anal region or her breasts or engaged in explicit sexual activity, AND at the time of the recording there were circumstances that gave rise to a reasonable expectation of privacy.
Essentially the law criminalizes the re-distribution of privately delivered intimate images without the consent of the person depicted in the image. One of the harms the legislation is designed to target is the alleged proliferation of a phenomenon known colloquially as “revenge porn”. The examples cited by proponents of the legislation include ex-boyfriends posting images of their past partners to various public websites readily accessible to the public. However, the scope of the law encompasses far more than this particular circumstance and designed to protect all potential situations where individual privacy rights are violated with the publication of an intimate image without consent.
The offence when prosecuted by indictment carries a maximum jail sentence of 5 years. There is no prescribed minimum penalty whether prosecuted summarily or by indictment. Further, the Sex Offender Information Registration Act has not been amended to include this new offence as a “designated offence” under the Sex Offender Registry regime.
Prohibition of Future Use of the Internet
If convicted, the Court has the power to prohibit the offender from use of the internet as the Court deems appropriate. There are no constrictions of the scope of the Court’s discretion and a lifetime ban is a possibility.
Removal of intimate images
Judges have the authority to order images to be removed from the Internet when they were posted without the consent of the person or persons in the images.
Forfeiture of Equipment
Judges have the authority to order the forfeiture of the computer, cell phone, or other device used in the offence.
Costs to Recovery and/or Removal of Intimate Images
Judges have the power to order reimbursement to victims for costs incurred in removing/recovering the intimate image from the internet or elsewhere.
Judges have the power to make an order preventing someone from distributing intimate images in the future.
Existing laws that address cyberbullying
The new law makes clear that all existing offences that apply to bullying situations also apply to cyberbullying, where appropriate. The following are the existing Criminal Code offences that cover bullying and cyberbullying activities:
- Criminal harassment (section 264)
- Uttering threats (section 264.1)
- Intimidation (subsection 423(1))
- Mischief in relation to data (subsection 430(1.1))
- Unauthorized use of computer (section 342.1)
- Identity fraud (section 403)
- Extortion (section 346)
- False messages, indecent or harassing telephone calls (section 372)
- Counselling suicide (section 241)
- Incitement of hatred (section 319)
- Defamatory libel (sections 298-301)