Newfoundland and Labrador Latest Province to Propose ‘Revenge Porn’ Law

32577635901_b3d1b6989c_o-768x512

This spring the Justice Department of Newfoundland and Labrador announced that it will be joining the ranks of Manitoba, Saskatchewan, and Alberta and tabling a so-called “revenge porn” law. Such laws create a civil right of action against someone who has shared intimate material of another, such as a photo or video, without that person’s consent.

In 2015, the federal government passed the Protecting Canadians from Online Crime Act, which, among other things, amended the Criminal Code to prohibit the non-consensual distribution of intimate images.  Since then, a handful of Canadian provinces have followed up with laws creating civil rights of actions for complainants who don’t necessary want to seek justice through the criminal justice system.

Under these laws (see for example Manitoba’s Intimate Image Protection Act), a person who distributes an intimate image of another person knowing that the person depicted in the image did not consent to the distribution, or being reckless as to whether or not that person consented to the distribution, commits a tort against that other person. A action may be brought without proof of damage and such laws usually stipulate that one does not give up one’s expectation of privacy in an intimate image just because they consented to another person recording the image or provided the image to another person. A narrow defence is available to the respondent who can argue that the distribution of the intimate image was in the public interest.

For its part, the Ontario legislature has not enacted such a law and courts have instead forayed into the common law tort of invasion of privacy. In a 2016 Ontario Superior Court decision, Doe 464533 v N.D., 2016 ONSC 541, the court built on the groundwork laid by Jones v. Tsige, 2012 ONCA 32, which recognized as authoritative a seminal American legal article, “Privacy” written by William Prosser in 1960. Prosser identifies four separate torts for invasion of privacy, one of which, “intrusion upon seclusion”, was adopted by the Ontario Court of Appeal in Jones, another, “public disclosure of private matters”, was adopted for the first time in Canada by the Ontario Superior Court in Doe 464533.

However, Doe 464533 was a default judgement that was eventually set aside; its value as precedence is unclear.

The passing of civil action “revenge porn” laws have the potential to make the law clearer and more accessible for a genre of complainants whose right to privacy and control over their image was, until recently, largely left incomplete. Of course, laws that limit expression, of which cyberbullying is a type, so long as it does not include “violence or threats of violence”, come with risks of Charter infringement, as the province of Nova Scotia learned in 2015 when its Supreme Court struck down the country’s first cyberbullying law for s.2(b) and s.7 infringement (click here for a legal synopsis).

Furthermore, in the wild west of the Internet, sometimes laws cannot help: online anonymity and tools for remaining untraceable on the Internet combined with the new reality that “once something is on the Internet it’s there forever” mean that criminal and civil sanctions only have a small role to play in the eradication of online violence against women and girls.

This blog post was written by a CCLA student. Opinions expressed do not necessarily reflect the views of the CCLA.