The charge of revenge porn explained
By Vincent Semenuk
Revenge porn involves posting or sharing intimate images or videos of someone without their consent for vengeful purposes. It can involve material posted on websites or shared through email or social networks.
In many cases, this occurs when relationships break down and one person wants to embarrass the other one by sharing intimate images with friends, family, employees or the general public. This crime is also described as non-consensual pornography and can involve secret recordings or images taken of the complainant or those stolen from their computer or phone.
Revenge porn is increasing across Canada, including in Alberta. According to cypertip.ca, reports of offences were up 58 per cent in the first nine months of 2021, compared to the nine-month period prior to April 2020. That includes a 94 per cent increase in youth reporting and a 44 per cent increase in adult reports.
The origin of the intimate photo doesn’t matter
During a relationship, partners may agree to take intimate photos. But once that relationship is over, it is a crime to share those photos without the other person’s permission. It does not matter if you are in the photo, you still must receive permission from the other person pictured.
If you share these images without consent you could be facing a criminal charge. That is because s. 162.1 of the Criminal Code makes it a criminal offence to publish, share, sell, etc. an intimate image without consent. The maximum sentence given is five years in prison.
Revenge porn leads to new Alberta tort
In 2021, the Alberta Court of Queen’s Bench released its decision in ES v Shillington, which recognized a new tort: Public Disclosure of Private Facts. This tort protects people from having private information shared publicly. To prove this tort, a plaintiff must show:
- the defendant publicized an aspect of the plaintiff’s private life;
- the plaintiff did not consent to the publication;
- the published material would be highly offensive to a reasonable person in the position of the plaintiff; and
- the publication was not of legitimate concern to the public.
The court ruled those conditions had been met in ES v Shillington and awarded $180,000 in damages to the plaintiff.
In another Alberta case, the Court of Queen’s Bench issued a summary judgment in a revenge porn case, ordering the accused to pay a woman $130,000 in damages. The court heard that a man hacked into her Facebook account and posted a revealing photo she had given him as a private Christmas gift. He also forwarded the photo to her new boyfriend with a “sexually suggestive” message. Later that year, the woman realized her name was linked to an online porn site and that a Tumblr account included sexually explicit photos of her that were taken years before. The account also noted that she lived in Edmonton.
“It is abundantly clear that the defendant was motivated by actual malice and wanted to cause the plaintiff humiliation and embarrassment and interfere with her new relationship,” the judgment reads.
What is an intimate image?
An intimate image is any visual recording of a person who is nude or is exposing their genitals, anal region or breasts in an explicitly sexual activity, according to s. 161.1 (2) of the Code. At the time of the recording there must have been “circumstances that gave rise to a reasonable expectation of privacy.”
You can be convicted of this offence if you published, distributed, made available or advertised an intimate image of a person and you knew they did not give their consent. You can also be convicted if you were “reckless as to whether or not that person gave their consent to that conduct,” according to the Code.
What are my defences to this charge?
Can the Crown prove who uploaded the original images? If a public computer or an anonymous internet account was used to post intimate photos of someone else, it can be difficult to determine who posted the images. That is illustrated in a Canadian case involving a couple who had been dating for a short time. According to court documents, a woman forwarded five intimate photos of herself to a man through Snapchat. After they broke up, the photos were posted online. Investigators admitted they were “unable to ascertain who posted these photos on the internet,” according to the judgment. The man was acquitted.
The complainant consented to the release of the images. If people agree to post intimate images of themselves online and they are over 18, this behaviour is not criminal, even if they later regret their decision.
Someone else posted the images. You could argue someone accessed your computer and distributed the images without your consent.
Your Charter rights were violated. If police searched your computer without a warrant, I can ask the court to disregard any evidence they found.
The images were shared inadvertently. If the posting of photos was intentional, it could be argued that you did not have the mens rea or guilty intent needed to be found guilty.
The images served the public good. Section 161.1 (3) of the Code states that “No person shall be convicted of an offence under this section if the conduct that forms the subject-matter of the charge serves the public good and does not extend beyond what serves the public good.” This is a difficult defence to raise as there are not many situations where posting intimate photos of someone without their consent is in the public good.
Get Dunn & Associates on your side
If you are facing a charge related to revenge porn, the experienced criminal defence team at Dunn & Associates can help. We will work diligently to obtain the best outcome with your charge.