• Lewis Waring

Ongoing Intimate Image Distribution Case Promising Development - Shawn Eisler

As our world continues to shift further into the age of technology, lawmakers have been forced to expand our legal system in order to deal with the problems that have arisen as a result. One issue that has caused significant traction is the non-consensual distribution of intimate images, often referred to as “revenge porn”. In 2015, Manitoba became the first province to create legislation giving rise to the recovery of damages for this kind of behaviour. The Intimate Images Protection Act (“The IIPA”) provides that anyone commits a tort when they distribute the intimate images of another person without their consent or being reckless as to whether or not they had been given consent. However, The IIPA also provides a defense where the distribution is in the public interest and does not extend beyond this interest. As a new act, its application has been somewhat limited. However, a recent case in Brandon, Manitoba, not yet decided, will give the public an opportunity to view how this section of The IIPA is to be practically interpreted.


In this case, the plaintiff is suing the defendant for distributing her intimate images. The defendant, who was in a relationship with an officer of the Brandon Police Service (“the BPS”), suspected her partner of infidelity and discovered intimate images of the plaintiff on his computer as they had engaged in a brief affair. At the time, the defendant was in the recruiting process to also become a member of the BPS and was shortlisted for an upcoming position. The defendant, also working for the BPS in a civilian role, distributed these images to the police. After meeting with the BPS and admitting to the affair, the defendant was given the option to either remove herself from the hiring process or be removed by the BPS. The plaintiff is now suing for damages between $200,000 and $350,000 and has named the BPS as a third party in the suit. However, the defendant contends that she should be protected under the public interest defense as the images were important to the hiring process of a police officer. Without delving into the issues related to improper police hiring practices, this case will provide an opportunity to gain insight into how the courts are going to apply The IIPA and, specifically, the public interest defense.


On its face, it seems extremely clear that there could be no public interest found in this case. Evidently, the motive of the defendant was at least partially rooted in obtaining some sort of “revenge” on the plaintiff for having an affair with her partner. Hopefully, we will learn whether or not an improper motive can preclude a finding of public interest. Nonetheless, how could one argue that looking at a female recruit’s naked body is somehow in the public interest? The position of the defense is that, for police background checks to be effective, they must investigate deep into the personal characteristics of the applicant. This is because being a police officer is often a dangerous career in which vulnerabilities could be taken advantage of for a criminal purpose. The example provided by the defense is that these images have the potential to be used for blackmail and therefore are of a public interest in relation to the hiring process. While I do not believe this argument has enough merit, it will be interesting to see how the court rules on this issue. Essentially, it will come down to how the court chooses to define “public interest” and how broadly they believe this definition should extend.


Perhaps a more interesting point of contention is that the images were not given to any “regular” third-party but to the police. Does it matter that the distribution of these pictures was to the police and not to some other uninformed third-party, as is usually the case? Although we have seen a drastic increase in police scrutiny over recent years, police services are who we, as a community, trust in upholding the law. The court will be forced to decide whether distribution of intimate images to the “upholders of the law” is in effect the same as the dissemination of images to members of the general public. After all, the images were given to a singular police chief of BPS who was given discretion in how he was to proceed. Does this factor shift blame from the defendant and onto BPS as a whole? Further, if distribution to police is to be given deference under The IIPA, should there be a distinction between the police as enforcers of the law and the police as an employer/third-party, as is the case here? I believe that this should not matter. However, in the event that it does, a distinction needs to be made. The police were not acting as enforcers of the law but as an employer, and I am prepared to contend that, if any other employer was given intimate images, a liability would result.


Finally, as enforcers of the law, should the police have warned the defendant not to disseminate the images and that there could be consequences if she did? Would the failure to do so absolve the defendant of any liability? Police officers, and especially police chiefs, should be reasonably expected to have an understanding of the law. Although this is a civil action, the dissemination of intimate images without consent is also an offence listed in the Criminal Code (“the Code”). As such, an argument can be made that the police were in a position to stop this distribution and failed to do so. It is up to the court to determine whether or not this has any bearing in mitigating the liability of the defendant, who would reasonably have less knowledge of the law than the police.


As discussed, the BPS case raises a lot of intriguing questions that will soon be answered by the court. Upon the release of its decision, we will gain valuable insight into how The IIPA, relatively new, is to be applied in the future and how it will ultimately provide recourse for victims of non-consensual distribution of intimate images. Victims of these acts of revenge can suffer extreme emotional, psychological, and even economic damages. I am confident that justice will be effectively served for the defendant in this case.


References:


The Intimate Image Protection Act, C.C.S.M. c.I87 s 11(1), (13).

May, Drew. “Intimate Images Trial Wraps Up”, The Brandon Sun (2021), online:

<https://www.brandonsun.com/local/intimate-images-trial-wraps-up- 573809652.html>.

Izri, Touria. “'Devastating invasion of privacy': Closing arguments heard in intimate images case in Brandon”, CTV News (2021), online: <winnipeg.ctvnews.ca> [perma.cc/VMP9-4QSY].


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