• Lewis Waring

Non-Consensual Intimate Image Distribution - SJ

When the internet was first introduced, it seemed to be a gateway to a world of infinite possibilities. However, no one expected those opportunities would be met with greater challenges that would continually unfold over the years. Connecting with our family and friends through social media by sending photos and videos has never been easier. However, that has brought on the new challenge of non-consensual distribution of an intimate image, also known as “NCIID” (“NCIID”). The Canadian Legal System has responded by creating criminal and civil laws to address this issue. This article will focus on NCIID as it pertains to criminal law. The following will define the offence of NCIID, explore the evolution and criticisms of Canadian criminal law and sentencing, and look at how other countries are tackling the issue.


What is NCIID?


NCIID, also colloquially known as “revenge porn”, is a relatively new term; the concept behind the distribution of nude photos without consent is not. This type of conduct has been going on as long as photographs have existed. Digital technology has not created the issue of NCIID but rather it has amplified it and the prevalence of inappropriate images continues to grow. With the addition of digital and online technology, the effects of NCIID have become unlimited. Taking and sharing intimate images via smartphones has become the social norm and no one thinks twice about it. Within seconds, intimate images can be distributed without consent to millions of people with no sure way of knowing how many individuals have viewed the intimate images or videos. The damage to the victim continues beyond the initial distribution of the image. It is limitless and can irreparably harm the victim. Although the internet provides many benefits, it also provides a venue to stalk, harass, threaten, or perpetuate sexual violence. When it comes to NCIID, society’s reliance on social media platforms creates a false sense of privacy when exchanging intimate images.


Revenge porn is commonly used to describe the redistribution of an intimate image involving a partner or former partner. What starts off as a consensual act can quickly move beyond the intended original purpose between the two parties. Justice Minister Peter MacKay described the typical means of committing a NCIID offence:

“It usually begins, in some sense, with a non-criminal context of perfectly lawful, consensual recording of intimate images in a private setting. I specifically set aside any images depicting an underage youth. These images may be subsequently transmitted electronically to a partner, a practice commonly known as “sexting”. Upon the breakdown of the relationship, however, one of the known partners may distribute these images to third parties without the consent of the person depicted in the image. It is now commonly known as “revenge porn”.


While the circumstances described above may be typical, NCIID can actually involve diverse forms of exploitation. For example,

  • intimate images can be hacked and redistributed without the victim’s consent;

  • a victim can be filmed without their knowledge; or

  • a victim’s face can even be superimposed onto someone else’s body in pornographic imagery.

As such, the term “revenge porn” has been criticized by commentators who argue it is limiting and it places blame on the victim. Therefore, it is not a phrase that is considered appropriate when referring to the offence of NCIID.


The Making of section 162.1(1)


In 2005, voyeurism was added to the Criminal Code (“the Code”) under section 162 to address concerns about new technologies which could be more easily used to secretly spy on people for sexual purposes. Daniel Brown, a criminal defence lawyer and author in Ontario, defined the offence on his firm’s website:


According to Section 162 of the Criminal Code of Canada, voyeurism is committed when a person secretly observes someone or makes a recording of them where the observed or recorded person had a reasonable expectation of privacy. The observation or recording must capture the exposure or expected exposure of a person’s genitals and/or breasts, sexual activity, or was done for a sexual purpose.


While section 162 addressed surreptitious recordings, the offence of voyeurism still did not tackle the distribution of those recordings. So, in order to combat the abhorrent nature of NCIID, section 162.1 was introduced in Bill C-13, Protecting Canadians from Online Crime Act, as a part of the federal government’s initiative against cyberbullying. The bill was introduced as a response to two high profile incidents of two young women, Rehtaeh Parsons and Amanda Todd, taking their lives after their intimate images had been shared without their consent. In 2015, section 162.1(1) was enacted into law.


The Code provision addressing NCIID at section 162.1(1) reads:


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.


Section 162.1(2) defines an “intimate image” as a visual recording of a person by any means including photographic, film or video recording, where the person is nude (exposing his/her genital organs or anal region or her breasts or is engaging in explicit sexual activity. In addition, with respect to the intimate image, there was a reasonable expectation of privacy at the time of the recording and at the time the offence was committed.


Both sections 162 and 162.1(1) put an emphasis on the requirement of consent at the time the intimate image was taken as well as at the time of distribution. The mens rea standard for an NCIID offence is recklessness. Therefore, in order for a person to be found guilty of NCIID, the accused must have been aware that there was a reasonable expectation of privacy at the time the imagery was created as well as the time when the imagery was distributed. The accused must have known the risk but continued with the behavior despite that assumed risk.


At the time Bill C-13 was proposed, some experts argued that a recklessness standard could prove to be an issue. Specifically, David Fraser, a privacy law expert, testified that the standard of recklessness could pose a risk of the law being struck down or making criminals out of people who are not truly blameworthy. Recklessness applies where a person should have looked into something but decided to be wilfully blind. David Fraser believed that a recklessness standard would be too low and would become an issue due to the large number of images online which makes it impossible to look into in advance.


Criticisms of Voyeurism and NCIID


An NCIID offence is both an offence against sexual integrity and against privacy. However, both voyeurism and NCIID both focus on the privacy of the individual and whether or not there is a reasonable expectation of privacy at the time of the offence. With respect to NCIID, the focus on privacy has brought up concerns by critics such as Moira Aikenhead, a PhD student at UBC’s Peter A Allard School of Law; she argues there is an over-emphasis on victims’ privacy which in turn has resulted in judges conceiving this crime as a violation of privacy rather than a crime of sexualized gender-based violence. Furthermore, Ms Aikenhead would go as far as removing the reasonable expectation requirement. By doing this, it would be a criminal offence to share pictures of a person when they are nude or involved in sexual activity without their consent. To her, this would be fair.


Nevertheless, the judicial system is tackling some of these concerns by specifically defining elements within the statutes. For example, in R v Jarvis (“Jarvis”), the Supreme Court of Canada (“the Court”) further defined a “reasonable expectation of privacy” with respect to the charge of voyeurism laid out in Section 162(1)(c) of the Code. The case involved a teacher who was charged with voyeurism for secretly recording his students. There were three elements of the offence at play in Jarvis:

  • the accused made a visual recording;

  • he made the recording in circumstances that gave rise to a reasonable expectation of privacy; and

  • the recordings were made for a sexual purpose.

Both the trial and appellate courts found that the reasonable expectation of privacy element could not be satisfied.


The primary issue on appeal for the Court was whether the students filmed by the Mr. Jarvis had a reasonable expectation of privacy at their school. The Court decided that people can have a reasonable expectation of privacy even in public spaces and carved out a contextual approach to determining a reasonable expectation to privacy in the context of voyeurism under section 162(1)(c) of the Code. The listed factors were:

  • the location the person was in when he or she was observed or recorded;

  • the nature of the impugned conduct (whether it consisted of observation or recording);

  • awareness of or consent to potential observation or recording;

  • the manner in which the observation or recording was done;

  • the subject matter or content of the observation or recording;

  • any rules, regulations or policies that governed the observation or recording in question;

  • the relationship between the person who was observed or recorded and the person who did the observing or recording;

  • the purpose for which the observation or recording was done; and

  • the personal attributes of the person who was observed or recorded (Jarvis, para 29).

This is not an exhaustive list but rather a guiding tool. The list focuses on any circumstance surrounding any factual situation rather than if the location was public or private. However, this does not mean that location is not important. Specifically, Chief Justice Wagner stated that, while traditional private settings are likely to set the highest expectations of privacy, that does not preclude an expectation of privacy from existing in a public setting.This is an important ruling because the interpretation of reasonable expectation of privacy has now been expanded beyond the physical location. This puts less emphasis on the location component of a voyeurism offense. The provisions in voyeurism and NCIID with respect to reasonable expectation of privacy are similar in nature, so the hope is that it will be applied to NCIID.


Although the creation of NCIID is a move in the right direction in addressing the distribution of intimate images, there are still gaps in Canada’s legal system with respect to this issue.


Specifically, while section 162.1(1) deals with individuals with respect to the non-consensual distribution of intimate images, it does not punish websites that host these intimate images. I believe Canada has taken a soft stance when it comes to holding websites accountable for their behaviour. These websites are profiting from the exploitation of individuals at their most vulnerable moments without their consent. To me, that is the definition of illegal. Without a platform, NCIID would not have the same power and far-reaching effect. Furthermore, Canada has no specific criminal offence that deals with the creation of non-consensual fake images. The current definition of an intimate image does not include fake images. Non-consensual fake images are created by superimposing an individual’s face on pornography. This law is relatively new, so it remains to be seen if such a visual recording could fall under this definition.


Sentencing


Section 162.1(1) is a hybrid offence. This means offenders can be prosecuted by indictment, which carries a maximum penalty of five years in prison, or prosecuted summarily, which carries a maximum penalty of two years less a day in jail and/or a $5000 fine.


Section 718 of the Code outlines the principles that courts must consider during sentencing. Deterrence and denunciation are two of the objectives listed in section 718 and are the primary objectives when sentencing NCIID crimes. The Court in R v M reminds us of the purpose of denunciation:


Denunciation is the communication of society’s condemnation of the offender’s conduct. A sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law.


In the Manitoba Court of Appeal (“the MBCA”) decision in R v SCC (“SCC”), the MBCA confirmed deterrence and denunciation as the primary sentencing objectives for NCIID. With these principles at the forefront, courts need to place emphasis on the offence committed over and above the circumstances of the accused. The sentencing precedents on NCIID charges suggest that non-custodial sentences are the exception, not the rule. Even where mitigating factors are present or the offender has no criminal record, the ordinary result is a custodial sentence.


Responses to NCIID in Other Countries


It is important to understand the global view of non-consensual distribution of intimate images as it helps us to understand how we perceive and value this type of behaviour. In the United States, individual states began enacting laws in 2013. There continues to be a rise in the number of state laws created addressing this concern, but a majority of them have blind spots which can render them ineffective. Because laws are made at the state level, it creates an issue of inconsistency. Specifically, there seems to be a disagreement with respect to whether or not an individual’s motive plays a role in whether he or she is guilty as some state laws require an intent to harass to convict. By contrast, Canada has implemented their NCIID law at a national level, creating a cohesive standard that does not conflict from province to province.


In addition to laws, non-legal remedies have proven to be helpful. For example, sites such as Facebook, where non-consensual images can be distributed easily and at an alarming rate, has implemented a new system which allows users to report material by flagging it. The platform will then review the material, remove it, and prohibit any further sharing of the content. Despite this advancement, one of the toughest tasks associated with combatting the distribution of non-consensual image distribution is the problem of removal. Even if the material is removed from one site, there is no guarantee it has not been copied, screenshotted, or stored on a cache somewhere. Facebook responded by allowing users to proactively upload their own explicit material to a private catalogue in order to pre-emptively flag and block future uploads. The Facebook representative will review and “hash” the image, which creates a digital fingerprint. This hash is added to a database and, if someone tries to post the original image, it will be blocked.


While it may seem counterintuitive to upload intimate images onto Facebook in order to combat circulation of that imagery, the purpose is to block that material from appearing publicly on the platform in the future. Although the damage is done as soon as the intimate image is shared for the first time, Facebook’s attempt to remedy these situations is effective. Even so, there are still websites that are dedicated solely to hosting non-consensual intimate imagery. Users of these sites are typically anonymous and if these sites are shut down for legal reasons, the content just moves to another site, making it difficult to track down the original non-consensual intimate image posting. Nevertheless, popular platforms such as Facebook are starting to understand their responsibility in the fight against NCIID and are taking measures into their own hands before they are forced by laws. It is important to give praise where praise is due, but we also need to continue to push online platforms to own their part and create a safer environment for everyone. As stated above, without a platform, distribution of intimate images will not be as effective.


In the United Kingdom, the criminal justice system enacted the Criminal Justice and Courts Act in 2015, making it a crime to disclose private sexual material with the intent of causing fear and distress. Under the law, the definition of “private” is defined as any material that would not normally be viewed by the public. The law extends beyond online formats to offline formats via physical copies. It is seen as a communications law whereas in Canada the focus is on privacy. A joint statement by the Ministry of Justice and Home Office said "[w]hen we engaged with victims and campaigners in designing the new law, they accepted that the motive for this crime is almost always malicious, rather than sexual, which is why the law considers it a non-sexual offence”. Unfortunately, by not considering this a sexual offence, you are missing the fundamental aspect of the act which makes it so abhorrent. While the act is done out of malice, what makes it demoralizing is the sexual nature of the photo. The two cannot be separated.


By looking at these countries, it is clear the focus is not on the sexual nature of the photos but rather the intent of the distribution. This leads me to believe that the nature of NCIID and the harm caused will not be fully understood until there is a greater appreciation for the parallels between NCIID and other sexual offences.


Conclusion


While Canada has created a law to address NCIID, it is obvious that there are still some uncertainties as to definitions within that law. Additionally, the emphasis on the violation of a victim’s privacy rather than the sexual nature of the photos or violation of the victim’s sexual dignity identifies a possible comprehension issue – one that may be revealed as more cases are adjudicated. Time tells all. The principles that guide sentencing do indicate that Canada is committed to the cause of combating NCIID and holding offenders accountable for this behaviour, but there are still gaps in the law. Laws are still needed to address accountability for online platforms that host such material and the role those platforms should have in removing the material or preventing further dissemination. These necessary additions would provide a more comprehensive approach to deterring this type of behaviour.


Check out the Robson Crim MLJ
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