Revenge Porn – Remedies Under the Law

As technology advances so does the potential for new injuries arise from our everyday inclusion of such technology in our lives.

Readily accessible cameras and video recorders on our phones, the use of text messages and email for the exchange of digital files, and the extensive use of social media as a platform for sharing our experiences all lend themselves to an increased risk of our private lives being widely distributed and shared with the public, without our consent.

In the past few years, we have been hearing more and more about the devastating effects of “Revenge Porn”.  Revenge Porn is the uploading of intimate and private photos and videos, of a sexual nature, to publicly accessible media or websites without the consent of all the individuals depicted in the photos and videos.  Such acts have recently made headlines with hackers stealing sexually explicit photos and videos from celebrity cell phones, and reposting the images online.  However, it also commonly occurs in the context of relationship breakdowns, where one individual shares or uploads photos and videos of their ex-partner to publicly accessible webpages.

In 2013, the Intel Security Group, McAfee, released a study showing that 13% of American adults have had their personal content leaked to others without their permission.  The study additionally showed that 1 in 10 ex-partners have threatened to expose sexually explicit photos of their exes online, with these threats being carried out approximately 60% of the time.

The outcome of such a breach of privacy and trust often involves the ruin of a person’s life.  Victims are exposed to online and workplace harassment, cyberstalking, and severe emotional and psychological harm.  Additionally, given to download and copy images and videos from the internet, it is exceptionally difficulty to completely remove any media from the internet once it is posted online.  If the Revenge Porn is posted alongside the victim’s identifying information, it can also have longstanding effects on a victim’s ability to obtain employment given the common practice of employers conducting online searches of potential employees.

Notwithstanding the risk, those in an intimate relationship often continue to share such photos with each other, or participate in the production of homemade films and photographs of an erotic nature.

In Canada, Parliament has recently passed Bill C-13, the Protecting Canadians from Online Crime Act, which, among other things, amends the Criminal Code of Canada to make it an offence to publicly distribute private intimate images of a person without their consent.  While this offence criminalizes such activity and has recently led to jail sentences for offenders such penalties do not address the significant damage done to the victims.

In a recent case out of Ontario, a victim of Revenge Porn successfully sued her ex-partner for damages stemming from his posting of a sexually explicit video of the victim on a public website.  In finding against the Defendant in this case, the Ontario Superior Court of Justice applied the torts of breach of confidence, intentional infliction of mental distress, and invasion of privacy to Revenge Porn, and awarded the victim damages and costs in the amount of $141,708.03.  While this decision has since been set aside (the Defendant had failed to file a Statement of Defence and the decision was set aside to permit him to do so), it was not overturned on its principles.  As a result, the Court has not stated that these torts are not applicable to Revenge Porn.

If you have been the victim of Revenge Porn, this means that you may be able to claim against the person who has victimized you.

In Alberta, the Courts have historically failed to recognize a common law tort of Invasion of Privacy, instead holding that if damages are available for such a breach of privacy, action must be taken under the Personal Information Protection Act.  However, this Act is intended to govern the collection and disclosure of personal information by an organization, and does not provide remedies for the disclosure of private information by an individual, such as an ex-partner.  Numerous other provinces in Canada have developed legislation that creates torts, or common law offences, for the breach of privacy, such as Revenge Porn, by an individual; however, Alberta has failed to create such legislation at present.

Given the nationwide awareness of the prevalence of Revenge Porn, the recent handling of such in Ontario, and the evident long-term damage that Revenge Porn can cause to its victims, we at Mincher Koeman LLP believe that the Courts in Alberta will be ready to accept and develop a common law tort of Invasion of Privacy for victims of Revenge Porn.

If you are, or have been, the victim of Revenge Porn, you should contact the police immediately to report the offence.  You should then seek legal advice to determine your options for civil remedies against the offender, and Mincher Koeman LLP can help.  Even if you have not been a victim of Revenge Porn, but are considering a prenuptial or cohabitation agreement, you can ensure greater protection for yourself in the event of a breakdown of your relationship by ensuring that your agreement includes provisions to protect you and compensate you should your partner ever post videos or photos of you online.

If you have any questions, or need help, please contact one of our lawyers immediately.

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