Revenge Porn in Canada: Is posting revenge porn a crime?

What is revenge porn?

Through the past decade and into recent years, the evolution of the smartphone and associated technology has simplified the facilitation of dissemination of information and photographs, and privacy and consent concerns have frequently been raised before the courts. This includes the unwanted distribution and dissemination of intimate photographs, and persons doing so for an unlawful, and in some cases, malicious purpose.

One concerning manifestation of this is often referred to as non-consensual pornography and is more commonly known as revenge porn. This is viewed with considerable seriousness by the courts. Revenge porn, also known as non-consensual pornography, is a criminal offence in Canada and has been so for the past nine (9) years. Section 162.1 of the Criminal Code of Canada refers to the distribution of an intimate image, which is often associated with revenge porn.

Section 162.1(1) states that “Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct”

Section 162 is a dual/hybrid offence, which carries a maximum penalty of a no more than five (5) years imprisonment, or an offence punishable on a summary conviction.

As per Section 162.1(2), an intimate image is defined as a visual recording of a person made by any means, including photographic or video recording, where the person is nude, exposing his or her genital organs or anal regions or her breasts or is engaged in explicit sexual activity. Moreover, section b) states that “at the time of the recording, there were circumstances that gave rise to a reasonable expectation of privacy” and therefore the person depicted retains a reasonable expectation of privacy.

As a generalization, revenge porn consists of persons either sending, distributing or sharing of explicit images or videos of another individual, without their consent. This is usually done with the intention of embarrassing, harassing, or causing emotional distress to the person depicted in the explicit images. The law in Canada is clear in this respect, as section 162.1 of the Criminal Code expressly prohibits such actions as a criminal offence as the legislation was implemented in 2014.

What is Non-Consensual Pornography?

Non-consensual pornography, or revenge porn, refers to the act of distributing intimate or sexually explicit images or videos without the consent of the individuals depicted. These images are often obtained consensually within the context of a relationship but are later shared publicly to inflict harm, embarrassment, or to seek revenge on the person depicted.

What Is An Intimate Image?

An intimate image typically refers to any visual depiction, including photographs or videos, that reveal private and sexual content. It can include images captured consensually within the context of a relationship, intended to remain private between the parties involved. Such images may involve nudity, sexual acts, or any other content intended to be private.

As per Section 162.1(2), an intimate image is defined as a visual recording of a person made by any means, including photographic or video recording, where the person is nude, exposing his or her genital organs or anal regions or her breasts or is engaged in explicit sexual activity. Moreover, section b) states that “at the time of the recording, there were circumstances that gave rise to a reasonable expectation of privacy” and therefore the person depicted retains a reasonable expectation of privacy.

Criminal Charges For Revenge Porn

Globally, there have been various jurisdictions which have recognized the harmful nature of revenge porn and have enacted legislation to address it. In Canada, Section 162.1 of the Criminal Code of Canada refers to the distribution of an intimate image, which is often associated with revenge porn.

Defences to Revenge Porn Charges

Although Canadian legislation against revenge porn was put into force and effect in order to protect victims and their privacy, as with any offence, an accused has a constitutional right to a defence against such charges. A certain defence may be raised in relation to:

• What jurisdiction the offence occurred/ where the image was distributed. If the jurisdiction falls outside of Canada, then the Criminal Code of Canada does not apply.
• When the image was distributed. It is likely required by the crown prosecutor, in order to prove any charges beyond a reasonable doubt, to confirm the date and time the image was distributed. For example, if an image was distributed prior to the law being passed into force or effect, a defence can also be raised in this respect.
• Another common argument may be related to consent, and whether the person/victim depicted in the images had provided consent to the other party/accused to in fact, distribute or send the image. This often involves complex circumstances and should be discussed privately with a lawyer.
• A constitutional challenge of freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms, concurrent with the lack of intent to harm. While a defence of this nature may require a considerable legal opinion as to the specifics of the images distributed, etc, and ultimately be quite complex, it should be discussed with a lawyer during a consultation.

It is important to note that any defence raised may not absolve accused person of criminal liability entirely, as legislation passed in this respect often errs in prioritizing the protection of the privacy and well-being of individuals depicted without their consent. Regardless, matters of revenge porn are best discussed with a lawyer.

Punishments for Revenge Porn Charges

The severity of punishments for revenge porn charges varies and can range from fines to imprisonment, depending on the specific laws and circumstances of the case. While some jurisdictions may offer civil remedies, allowing victims to seek compensation for emotional distress, damage to reputation, and other related harms, in Canada, Section 162 of the Criminal Code is a dual/hybrid offence. It carries a maximum penalty of no more than five (5) years imprisonment, or an offence punishable by a summary conviction.

It should be noted that the above-described punishment does not consider the circumstances if minors were involved (see FAQ below).

Frequently Asked Questions

What If There Were Minors Involved?

When minors are involved in revenge porn cases, the legal consequences become much more serious. In fact, if you believe you may have received an image, video, or picture in some manner which depicts a minor in this regard, it is strongly advisable to contact a lawyer immediately. Possession of child pornography is a serious offence and can result in numerous, severe criminal charges. In many jurisdictions, sharing explicit images or videos of individuals under the age of consent is considered child pornography, a serious and indictable offence. Persons charged with such offences can face additional, much more severe penalties when minors are involved. This includes criminal charges related to the possession and distribution of child pornography.

If I’m In These Pictures, Can I Freely Share Them?

No, just because you may be depicted, or shown in a picture, image, or video, does not constitute consent by others in the video to consent to its distribution. Consent is crucial when it comes to sharing intimate images. Even if you are depicted in the images, it does not grant you unrestricted permission to share them without the consent of all of the other parties involved. The privacy and consent of any other person depicted should be top of mind, and should always be prioritized to avoid unwanted legal repercussions. A person should be cognizant of this, and that a photo, picture, image, or video, can unlikely be retracted after it is sent. Therefore consent should not be assumed, and must be obtained from each and every person who is depicted in the picture.

Can I Be Charged If Someone Else Sends Me Revenge Porn?

Merely receiving or possessing revenge porn does not automatically make you liable for criminal charges. However, as described above in relation to images of minors, this may vary.

If the person depicted in the photo, image, or picture is clearly an adult however, the police must have reasonable grounds to believe that you knowingly were in possession of the image or document, and then distributed or sent it.

For example, oftentimes a person receives spam or other messages which go to a “junk mail” folder, which it is reasonable to believe you have not viewed or merely have knowledge of its content thereof. Moreover, you are not obliged to provide the police with a statement at any time, and if you believe you have received an image or document which may be revenge porn, you may book a consultation and discuss the matter with a lawyer.

However, it is important to handle such content responsibly. This cannot be overstated, as if you are concerned as to what is depicted in a text message, email, or another electronic message which you received, do not share or distribute the document in any manner (this includes forwarding the message to another person). Revenge porn can potentially implicate you in the distribution of non-consensual pornography, regardless of whether or not you were the original sender. If you feel concerned about the content you’ve received, do not hesitate to book a consultation with a lawyer regarding the matter.

What if someone else posts a picture, image, or video on social media or the internet, and then I just screenshot or send that to someone else?

Although a person posting an image to an open source or social media page ultimately has a diminished expectation of privacy of the content, if you are unsure (and cannot confirm) as to whether the picture, image, or video was posted with that persons consent, it is advisable to use caution and refrain from something which could be viewed as unethical and negative consequences. As described above of a person is sent revenge porn, willingly receiving or screenshotting a picture or image can constitute possession.

Can there be legal consequences for revenge porn other than criminal charges?

Yes, there can undoubtedly be legal consequences for revenge porn external to criminal charges. This was evidenced in 2019, when in the province of Alberta, an Edmonton Police Officer was charged with one count of distributing an intimate image contrary to section 162 of the Criminal Code of Canada, after an investigation by the internal affairs/professional standards branch of the Police Service.

In Alberta, Police Officers are also bound to the provincial Police Act, which is in accordance with the Police Services Regulations. A criminal charge, amongst other offences under the police act, is likely to constitute an investigation at minimum, and may warrant charges under the police act such as discreditable conduct. Therefore, separate from the criminal courts, there are legal proceedings, or perhaps workplace harassment or other violations which may result from incidents of revenge porn.

In short, it is best to discuss the circumstances in their entirety with your lawyer to ensure there is nothing which arises that your lawyer has not had an adequate opportunity to prepare for.

Conclusion

Revenge porn is often viewed by the courts as a distressing violation of privacy and consent, with far-reaching emotional, psychological, and social consequences for victims. It is important that any person charged with an offence resulting from this, such as under Section 162 of the Criminal Code of Canada, consult a lawyer immediately, and exercise extreme caution as to who the matter is discussed with apart from legal counsel.

Further to this point, it is important to note the unique circumstances surrounding allegations of revenge porn should be discussed privately with a lawyer. Additionally, if you believe you have been a victim of revenge porn or non-consensual pornography, it is crucial to seek legal advice and/or assistance from a lawyer in order to understand how the legislation in Canada will apply to your circumstance.