Cyberbullying and the Non-consensual Distribution of Intimate Images
II. Non-Consensual Distribution of Intimate Images
The non-consensual distribution of intimate images (including videos) can occur in various situations involving adults and youth, including relationship breakdown and cyberbullying. During the relationship, the partners may exchange or take intimate photos of themselves for their personal use, but when the relationship breaks down, one of the former partners may provide/distribute the intimate images to the other partners' family, friends, employers etc., or may post such images on the Internet, in order to seek revenge on their former partner. Young people are increasingly consensually exchanging intimate images, which may later become fodder for humiliating cyberbullying attacks, with these images spreading quickly and often uncontrollably. Often these images are originally intended for an individual or only a small number of other people but are disseminated more widely than the originator consented to or anticipated. The effect of this distribution is a violation of the depicted person's privacy in relation to images, the distribution of which is likely to be embarrassing, humiliating, harassing, and degrading or to otherwise harm that person.
Extent of Non-Consensual Distribution of Intimate Images
There is limited data on the extent and the nature of this activity. Much of what is known about this behaviour is anecdotal and comes from the United States. A recent survey of adults between the ages of 18 and 54 Footnote 27 found that 1 in 10 ex-partners have threatened to expose intimate photos of their ex on-line, and according to the survey, these threats have been carried out in 60% of the cases. With respect to young people, an online survey of 1,280 respondents (653 teens aged 13-19 and 627 young adults aged 20-26) in 2008 commissioned by the National Campaign to Prevent Teen and Unplanned Pregnancy found that 20% of teens and 33% of young adults had sent nude pictures of themselves via text or email (a practice referred to as "sexting"). Footnote 28 A 2012 study published in the American journal Archives of Pediatric and Adolescent Medicine that surveyed 948 high school students in Texas, also found that 28% of the respondents had engaged in sexting. Footnote 29 A third recent study of 606 high school students at a single private school, representing nearly the entire student body, found that nearly 20% sent a sexually explicit image of themselves, and that 25% indicated that they had forwarded such an image to others. Footnote 30
The Working Group has also received anecdotal reports that Canadian law enforcement receive complaints about the non consensual distribution of intimate images on a regular basis, but unless the intimate images qualify as child pornography, or are accompanied by additional aggravating features/conduct there is likely no criminal action that can be taken.
Legislative Responses to the Non-Consensual Distribution of Intimate Images
Comparative International Perspectives
Only the state of New Jersey in the United States has a criminal offence Footnote 31 that addresses this conduct specifically. That offence prohibits the distribution of photos or videos of nude persons or persons engaging in sexual conduct, unless the person depicted in the photo consents to the distribution.
Several Australian states have enacted various laws which deal with elements of the non-consensual distribution of intimate images, though many of these offences are extensions of the criminal harassment provisions or voyeurism-type offences.
New Zealand's Law Reform Commission recently recommended amendments to the covert filming provisions of the Crimes Act, 1961 Footnote 32 to criminalize the publication of an intimate image by the person who made the image without consent of the person depicted. The Government has since rejected this recommendation, on the basis that this behaviour will be covered by other offences, what is not covered should be dealt with under civil remedies, and the proposal was an "uncomfortable fit" with the other covert filming offences which require a lack of knowledge of the filming itself. Footnote 33
Germany has a criminal offence of "violation of intimate privacy by taking photographs" which includes a prohibition on unlawfully and knowingly making available to third parties a picture that was created with the consent of another person and thereby violating their privacy (See Annex 2 for more detail).
Existing Criminal Code Offences
Existing Criminal Code offences can be used in some situations, although these usually require the presence of additional conduct which may not be present in most cases involving the non-consensual distribution of intimate images. In certain circumstances, section 162 (voyeurism), section 163 (obscene publication), section 264 (criminal harassment), section 346 (extortion), and sections 298-300 (defamatory libel) may apply.
In cases where the intimate image depicts a person under the age of 18 engaged in explicit sexual activity or the dominant purpose of the recording is the depiction for a sexual purpose of that person's sexual organs or anal region, the image constitutes child pornography and is captured by the Criminal Code's child pornography provisions (section 163.1).
Although the child pornography provisions address the distribution of intimate images of children under the age of 18 years, some Working Group members believe that section 163.1 is too blunt an instrument to address the core behaviour at issue, especially in situations where the perpetrator is also under the age of 18.
In relation to adults, there are concerns relating to the ability of the criminal law to respond to this behaviour, absent additional aggravating features that may bring the conduct at issue within the scope of existing offences. Footnote 34 Existing offences do not adequately address the harm that is caused by the non-consensual sharing of intimate images. For example, the offence of voyeurism only applies if the image is taken surreptitiously, and in the situation at issue, the images are most often taken with the consent of the person depicted. The offence of obscene publication would only apply if the image depicted was one of violence and sex, which is not a typical situation. Criminal harassment requires that the victim actually fear for their safety or the safety of someone known to them. The result of this type of conduct is usually embarrassment or humiliation caused by the breach of privacy, but not necessarily a fear for one's safety. Although existing criminal offences may apply in certain situations, they do not address the identified harm and therefore are not adequately responsive to the non-consensual distribution of intimate images.
The Working Group agrees that there is a gap in the criminal law as it relates to the non-consensual distribution of intimate images. To address this gap, the Working Group recommends that a new criminal offence of non-consensual distribution of intimate images be enacted.
Policy Basis for a New Offence
The Working Group considered two approaches to addressing this issue: (1) whether the objective of the offence should be to protect against specified conduct undertaken with a specific intent (e.g., malicious intent), or (2) whether the objective of the offence should be to protect against privacy violation. There was consensus that having a specific intent element may make the offence more difficult to prove, whereas, a privacy-based offence would not require proof of a specific intent, i.e. proof of intent to distribute the images without the consent of the person depicted would suffice. In addition, a privacy-based offence more closely aligns with the existing voyeurism offence, which protects similar privacy interests.
While the objective of the proposed offence is protection of privacy, the recommendation should not be interpreted as failing to acknowledge the related negative consequences such as the harassment and humiliation often felt by victims in these situations. Where there is evidence that the accused was motivated by malicious intent, the courts could consider this as an aggravating factor on sentencing.
Essential Elements of the Offence
The Image is an Intimate Image
The Working Group recognizes that it would be inappropriate to criminalize the distribution of photos that are simply embarrassing or unflattering. The term "intimate images" is intended to refer to images that relate to the core of a person's privacy interest. Such images are generally understood to depict explicit sexual activity or nudity or partial nudity that is captured on film or video consensually. The Working Group agrees that a new offence should protect similar privacy interests as the existing offence of voyeurism (i.e., nudity or explicit sexual activity in circumstances that give rise to a reasonable expectation of privacy. The Working Group discussed whether the definition of "intimate image" should require that the person depicted have a reasonable expectation of privacy in the image, taking into account the circumstances in which the image was made.
The Working Group agreed that the existence of an expectation of privacy in a particular image depends on two factors: the content (i.e., nudity or explicit sexual activity); and, the circumstances in which the image was made (i.e., taken in private), similar to the voyeurism offence. There was some discussion of whether an expectation of privacy may attach to an image of "non-private" sexual activity that was taken by a third party. For example, a couple engages in explicit sexual activity at a party and a bystander takes a video of them. Does the couple have an expectation of privacy in the image given that their behaviour did not take place in private? A judge would have to make this determination based on the nature of the circumstances in which the image was taken. Furthermore, the voyeurism offence may apply in this type of scenario, if the circumstances indicate that the image was taken surreptitiously.
The Working Group agreed that these "non-private" images should be afforded protection in appropriate cases, depending upon the circumstances in which the image was made. One approach for consideration could be the creation of a "for greater certainty provision" clarifying that engaging in sexual activity in non-private circumstances does not in and of itself waive a privacy interest in the image.
The Working Group further agreed that the person(s) depicted should be a real and identifiable person: cartoons and other creative works that do not impact the depicted person's privacy interest would be excluded. However, there was considerable concern that altered images could provide an easy defence to the accused if the definition of intimate image is too restrictive (i.e., the offence should not require that the image be unaltered). The Working Group suggested that the identity of the person depicted could be verified by various means and not only by the victim's face (i.e. including by other identifying information such as text).
The definition of an intimate image should be crafted in a manner that does not create a hurdle to a successful prosecution.
The advantage of this approach to defining "intimate image" is that it is consistent with definitions of similar material in related offences. However, this approach also raises a difficult question regarding the issue of potential overlap between the proposed offence and the existing child pornography offences.
Overlap with Existing Offences
Child pornography includes visual representations of explicit sexual activity or a visual representation of which the dominant characteristic is the depiction, for a sexual purpose, of the sexual organs of persons under the age of 18. The definition of child pornography also includes written and audio materials. It is an offence under section 163.1 to, among other things, make, distribute, possess and make available child pornography.
In R.v.Sharpe, Footnote 35 the Supreme Court of Canada established a "personal use" exception to the child pornography provisions. This exception permits two youths who engage in lawful sexual activity, to consensually record their own lawful sexual activity as long as that recording is made or possessed for their own "personal use." The material remains child pornography, but the youth can lawfully possess it for their personal use. Once that same material goes beyond their personal use (e.g.., one of the youth sends it to a friend) it is captured by the child pornography provisions.
The Working Group acknowledged that an intimate image, as proposed, would also constitute child pornography if the person depicted is under 18 years of age. This raises questions as to what options should be available to deal with an adult or young offender who may have distributed an intimate image of a person who is under the age of 18. Should the offender be charged with a child pornography offence? Or should the police and/or Crown have the option of proceeding under the proposed new offence, which would be a less serious and less stigmatizing offence?
Provincial and Territorial (PT) and Public Prosecution Service of Canada (PPSC) members of the Working Group and plenary indicated that currently, in these situations, police and prosecutors are sometimes reluctant to charge child pornography in cases involving images depicting persons under 18 years of age primarily because of the stigma that can attach to a charge of child pornography (for both the offender and victim). In their view the harm resulting from the distribution of intimate images (i.e., breach of privacy) is qualitatively different from the harm resulting from the distribution of child pornography (i.e., sexual exploitation of children).
Some members of the Working Group expressed the view that the child pornography provisions (especially when applied to cases involving older teens) were not designed to address this type of behaviour. The prevalence of this activity among young adults and youth has been fuelled by the growth in social media and it is becoming increasingly evident that these types of cases are being dealt with differently by police, Crown and the courts than "typical child pornography cases." Footnote 36 There is a risk that if a judge feels that a case is more appropriately one of non-consensual distribution of intimate images but child pornography is charged, the result may be a judicial expansion of the Sharpe personal use exception to the child pornography provisions resulting in more of this type of behaviour being excluded from the child pornography offence. Footnote 37
Further, PT and PPSC members cautioned against creating a new offence that is too narrowly defined or "watertight," especially with regard to the age of the person depicted in the image. In particular, there was concern that excluding images that constitute child pornography from the scope of the proposed offence could result in situations, where no prosecution for either offence is possible, or where a prosecution proceeds under one section but fails because a doubt was raised about whether the person depicted was over or under 18 at the time the image was created. Effectively, to proceed under a narrowly defined new offence, the Crown would be required to prove beyond a reasonable doubt that the person depicted was not under 18 when the image was created (i.e., that the image was not child pornography). In situations where the age of the person cannot be established, neither offence could be successfully prosecuted. Such a situation could arise, if the complainant cannot remember whether the image was created before or after he or she turned 18.
Some federal representatives of the Working Group identified potential risks associated with creating overlap between the two offences.
Failing to exclude child pornography from the proposed new offence could undermine the child pornography provisions in a number of ways. In the short term, such an approach could provide an opportunity or an incentive for accused to plead to the less serious new offence, particularly given that the offence of distribution of child pornography carries a mandatory minimum penalty. This could result in increased pressure on busy Crown prosecutors to accept pleas to the lesser offence even in cases where the more serious child pornography charges were warranted. The concern was raised that, over time, if cases involving older teens are being more often resolved by resorting to the proposed new offence, the broad scope of the child pornography offences may be questioned.
The Working Group agreed that the new offence should not weaken existing offences, particularly those that address child pornography. However, all the PT and PPSC members preferred an approach that would allow police and/or Crown prosecutors to exercise their discretion as to which charge to pursue depending on the facts and circumstances of the case.
In that vein, the Working Group recommends that the proposed new offence should take into account how to provide prosecutors with appropriate flexibility while maintaining the integrity of related offences.
The Working Group agrees that the offence should capture all ways in which intimate images may be shared, either through physical delivery, making available, social networking, email, or word of mouth advertising, etc. This may include the publication, advertisement, distribution, transmission or making available of an intimate image to another person.
Further, the distribution of the images, in whatever form, would be done without the consent of the person depicted in the image.
The proposed offence should require two mental elements. Firstly the accused must intentionally or knowingly distribute the images (i.e., not inadvertently).
Secondly, the accused should have knowledge that the depicted person did not consent to the distribution of the image, or be reckless as to whether or not the person did not consent. In recommending the mental element of recklessness, the Working Group is relying on Supreme Court of Canada jurisprudence holding that recklessness is found where a person is subjectively aware that there is danger that his conduct could bring about the result prohibited by the criminal law, and nevertheless persists, despite the risk. Footnote 38
The Working Group agrees that there should be a defence, similar to the public good defence in the voyeurism offence.
The Working Group recommends that the maximum penalty for the proposed offence be set at 5 years imprisonment punishable on indictment and 6 months imprisonment, on summary conviction, consistent with the penalty for voyeurism, which is also based on the protection of privacy.
- The Working Group recommends that a new criminal offence of non-consensual distribution of intimate images be developed.
- The Working Group further concludes that in creating a new offence, consideration should be given to providing prosecutors with appropriate flexibility while maintaining the integrity of existing offences.
- The Working Group recommends that the maximum penalty for the proposed new offence be set at 5 years imprisonment punishable on indictment and 6 months imprisonment on summary conviction.
Warrant of Seizure
The public availability of intimate images distributed non-consensually continues to harm those depicted in the images by violating the depicted persons' privacy. Although in many cases Internet Service Providers and others who receive such images will voluntarily remove and/or destroy them, situations may arise in which a court order is required to ensure their removal. There is currently no provision that would permit a court to order the removal of non-consensual intimate images from the Internet.
The Working Group recommends that a Warrant of Seizure be enacted (similar to section 164.1 for child pornography and voyeuristic material) to permit a judge to order the removal of intimate images from Internet services hosted in Canada. Further, it is recommended that consideration be given to whether or not the warrant of seizure should apply to situations where prior consent was given to the original distribution of the intimate image, but consent was subsequently withdrawn.
The Working Group recognized the challenges associated with removing offending material from the Internet, especially since much of the impugned material ends up on Internet servers hosted outside Canada and therefore outside the jurisdiction of our courts. However, despite those associated challenges, the warrant of seizure would be a useful tool in many situations.
The Criminal Code permits the court to order forfeiture (section 164.2) of things used in the commission of a child pornography offence (section 163.1), luring a child (section 172.1) or arranging a sexual offence against a child (section 172.2). The purpose of this power is to remove the tools used to commit any of these offences to prevent and deter an accused from perpetrating further criminal acts against a child. While it may be possible to use the Criminal Code provisions relating to seizure and forfeiture of offence-related property (sections 490 to 490.3), there was some discussion as to whether there was any benefit to creating a stand-alone forfeiture provision for the new offence.
The Working Group recommends that the Criminal Code be clear that the court may order forfeiture of things used in the commission of the proposed new offence. This may result in the forfeiture of cell phones, computers, or other related equipment if they were used in the commission of the offence.
Restitution in criminal cases can only be ordered where there are readily ascertainable losses related to categories outlined in section 738 of the Criminal Code. For example, where a victim suffered loss or destruction of property due to the offence, physical or psychological harm as a result of the offence, or incurred costs to re-establish their identity in the case of an offence under section 402.2 (identity theft) or section 403 (identity fraud), the court can order restitution.
In a case involving the non-consensual distribution of intimate images, it is possible that a victim could incur costs relating to the removal of these images from the Internet, but there is currently no authority to permit a court to order restitution in these situations. To address this concern, the Working Group recommends that section 738 of the Criminal Code be amended to permit restitution for costs associated with the removal of the intimate images from the Internet, or elsewhere.
One American survey indicated that one in ten ex-partners have threatened to release intimate photos of their ex on-line, and this threat was carried out in 60% of the cases. Footnote 39 This indicates that at least in some cases, individuals may have reason to believe that their former partner will distribute intimate images without their consent before the actual distribution takes place. The Working Group recognized that prevention of the distribution of the intimate image would be the victim's preferred outcome therefore, the Working Group recommends further consideration of whether section 810 (Recognizance Order) should be amended to clearly permit a judge to issue a peace bond if they are satisfied that an individual has a reasonable fear that the new offence of the non-consensual distribution of intimate images will be committed.
Unless a legislative amendment to the Canada Evidence Act (CEA) is made, the spouse of a person accused of distributing intimate images will not be eligible to testify for the Crown. This could include situations in which a third party was the victim of the privacy violation, as well as situations in which the accused's spouse was the victim.
To ensure that this offence can be successfully prosecuted where the accused's actions were in relation to their own spouse, as well as where the testimony of the accused's spouse is critical for proving an offence in relation to a third party's privacy violation, the Working Group recommends that the new offence be included as an exception to the rules in the CEA which would otherwise normally apply.
The issue of spousal testimony generally and in particular in relation to child pornography offences is also currently actively under consideration by CCSO, and a report on these issues is before FPT Deputy Ministers. Footnote 40
- The Working Group recommends making complementary amendments relating to the proposed offence of non-consensual distribution of intimate images including warrant of seizure, forfeiture, restitution, peace bonds, and spousal testimony.
The Working Group agreed that the issue of cyberbullying and the non-consensual distribution of intimate images are multi-faceted and present many challenges for police, Crowns, judges, policy makers and others. Given this, many members of the Working Group expressed a strong interest in being further consulted on this issue, if the Federal Government undertakes to legislate in this area. Further consultation will ensure identification of critical issues and broad input into the development of a legislative response to these issues.
- The Working Group recommends that the Federal Government engage and consult, if possible, with the provinces and territories on legislative proposals should the Federal Government legislate in this area.
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