New Privacy Tort Empowers “Revenge Porn” Victims

Manitoba’s Intimate Image Protection Act came into force on 15 January 2016. The statute does something that I think is especially noteworthy – it creates a new privacy tort concerning the “non-consensual distribution of intimate images”.In short, Manitoba becomes the first Canadian province to provide victims of revenge porn with a common law remedy and the ability to sue the perpetrators for damages.

Prospective plaintiffs would be any victim who can be identified in a photo or video, who appears nude or engaged in sexual activity, and  had a reasonable expectation of privacy.  Now in Manitoba, in response to a tort claim, courts may (a) award damages to the plaintiff, including general, special, aggravated and punitive damages; (b) order the defendant to account for any profits as a result of the non-consensual distribution of the intimate image; (c) issue an injunction;  and (d) make any other order that the court considers just and reasonable in the circumstances.

An interesting aspect relates to possible defences to such a tort claim. Manitoba’s statute expressly states that the victim does not lose his or her expectation of privacy if (i) he or she consented to another person recording the image or (ii) provided the image to another person in circumstances where that perpetrator knew or reasonably ought to have known that the image was not to be distributed to any other person. The sole statutory defence is where distribution of the intimate image is in the public interest and does not extend beyond what is in the public interest.

A second aspect of the new law is that it requires a designated agency to assist people who have had an image distributed without consent or who believe that one is about to be distributed without consent. This assistance can take the form of helping to have an image removed from the Internet as well as information about legal rights.

The Criminal Code has already been amended to make it an offence to (i) knowingly publish an intimate image of a person, where he or she did not provide consent or (ii) be reckless regarding the person’s lack of consent (the “cyberbullying section”). Courts also have the power to order removal of the image and forfeiture of the device used in the offence.

Victims of “revenge porn” or “cyber-bullying” (or child porn, for that matter) can feel helpless in the wake of such a devastating event as the publication of intimate photos. Once those images are “out there” one can never really get them “back”. Anything to make people pause, reflect and avoid doing something that will have lasting consequences is worthwhile. Perpetrators may well think twice if they realize that they may pay victims directly for the harm caused.

What Manitoba has done is commendable and the evolution of the law involving this new statute will be interesting to see. Now the question is: will other provinces follow Manitoba’s lead?