Proposed N.B. bill targets non-consensual distribution of intimate images

A recently proposed bill in New Brunswick aims to open the civil litigation process for people who've had intimate photos or footage distributed online without their consent.

Without the proposed bill, the province had no defined and fast-tracked process beyond pursuing a criminal charge through the Criminal Codeof providing victims a way to take down their photos.

The bill would also open the doorfor claimants to pursue punitive damages.

The Intimate Images Unlawful Distribution Actwas introduced by Justice Minister Ted Flemming on Nov. 2.

The bill would also apply to photos or footage where the victim is not identifiable or that may be doctored or altered, and in instances where consent to distribute is given and then revoked.

"This kind of violation can cause significant and often irreversible psychological, economic and reputational harm to the victim," said Flemming in a news release.

"This legislation will send the important message that, regardless of motive or method, there is no justification for sharing a private intimate image of a person without their consent, and there will be consequences for doing so."

'Putting the law in place isn't enough on its own'

Beth Lyons, the executive director of the New Brunswick Women's Council, says the use of civil law in getting content removed is a great option for those who may be wary of engaging with police for a criminal charge, or who don't have the time to go through an often longer criminal process.

"People who've been victimized by this, what they want the most often is just for those images to be taken down, made unsearchable as quickly as possible," said Lyons. "And that's where having a civil option is important, [for] that quick and efficient takedown."

Lyons says the non-consensual distribution of intimate images (NCDII) is a prevalent form of violence against women.

Often, this involves images that were consensually made for one person but were widely distributed, or taking sexual photos of someone who is unknowing or unwilling, such as through the act of upskirting.

While the bill is a good first step, Lyons said, more needs to be done to make people aware of and utilize thislegislation.

"It has to also be resourced because for lots of people, the idea of engaging in civil litigation is daunting," said Lyons. "So it's going to be really important that there's good, solid public education information out there."

She says more funding and legal aid needs to be directed toward victims of sexual violence.

"[It's] really important to make sure that it's not just people who have access to cash, or who have lawyers in the family, that it's not just those people that are able to seek relief through this law."

Geoffrey Downey, communications officer for the Justice and Public Safety Department, said one of the bill's main goals is to allow victims to "to take greater control of the process" and begin a court proceeding without requiring any assistance from others.

Downey says the department might explore having the Public Legal Education and Information Service of New Brunswick prepare a pamphlet or "other educational materials."

Forwarding the conversation around sexual violence

The proposed legislation is modelled closely after the Uniform Law Conference of Canada's Uniform Non-consensual Disclosure of Intimate Images Act published this year. The organization writes legislation to promote uniformity in laws among the provinces and territories.

University of New Brunswickprofessor of law Hilary Young helped write the legislation. She's hopeful the proposed legislation, if passed, willraise awareness of the severity of the crime.

"I hope in addition to actually providing some justice for people that it will be part of the dialogue and education around these issues, that maybe people will recognize the seriousness of this," Young said.

"I'm not necessarily super optimistic about that, because this is already criminal conduct and that doesn't seem to have deterred a lot of people."

According to the Department of Justicewebsite,Canadian law enforcement officials receive complaints about the non-consensual distribution of intimate images on a regular basis, but unless theimages "qualify as child pornography, or are accompanied by additional aggravating features/conduct, there is likely no criminal action that can be taken."

Young said Nova Scotia, Saskatchewan, Alberta, Manitoba, and Newfoundland and Labrador already have laws that create civil liability for the non-consensual disclosure of intimate images.

If New Brunswickalso passes the bill, it will join Prince Edward Island in adopting many of the provisions of the model act, including the two-track model.

How the bill works

The bill defines intimate photos or footage as depicting the victimengaging in a sexual act;nude or nearly nude; or exposing their genital organs, anal region or breasts.

It offers two civil litigation options: one that fast-tracks the removal of the intimate photos from where they were distributed, and another that aims to award punitive damages to the applicant.Both options can be pursued.

If the court finds that:

• the image is an intimate image of the applicant
• the applicant had a reasonable expectation of privacy in relation to the intimate image; and
• that the respondent distributed the intimate image

The court can order:

• the defendant to make every reasonable effort to make the intimate image unavailable to others
• order an internet intermediary or any other person to make every reasonable effort to remove or de-index the image
• the respondent to pay nominal damages to the applicant; and
• make any other order the court considers appropriate in the circumstances

Ifthe plaintiff is seeking damages, the court could order a guilty defendant to pay compensatory, aggravated and punitive damages to the plaintiff.

Young saidpeople found guilty might have to payfrom tens of thousands of dollars to $100,000 in damages.

"The amounts at stake are potentially very, very high."

If consent is given to the defendant to distribute intimate content but is later revoked, the applicant can still apply for a court order to take the content down and for awarded damages if the applicant communicated the revocation to the defendant.

The defendant would then have to "make every reasonable effort to make the intimate image unavailable to others."

That would include destroying all copies of the intimate image in the respondent's possession or control; having the intimate image removed from any platform operated by an internet intermediary, and having the intimate image de-indexed from any search engine.

In both of the civil law options, the defendant would beresponsible for proving the plaintiff did not have a reasonable expectation of privacy in relation to the intimate image at the time the visual recording or picture was made and, if the visual recording has been distributed, at the time it was distributed.

This also would also apply if the image or footage has been altered, such as deep fakes.

The bill had its second reading on Nov. 3 and if passed, will come into effect on Royal assent.