What happens if someone sends an ‘intimate image’ without my consent?
In April 2022, New Brunswick passed the Intimate Images Unlawful Distribution Act, which allows victims whose intimate image has been distributed to pursue a civil action for monetary damages. A person who has distributed, uploaded, or shared an intimate image can be forced to pay money towards the victim. As stated by MLA Sherry Wilson during the passing of the Act: “We have all become used to selfies, filters, memes, and mashups, but our pervasive photo culture has also made it easier for people to cause harm through the distribution of private, intimate images. Releasing sexually explicit images without consent causes real harm. The perpetrator may wish to control, punish, extort, or inflict harm on the person photographed, or the perpetrator may be looking for kicks, status, or financial gain. All are abusive. As technology changes so must our legislation”.
Recent statistics indicate that the sharing of intimate images without consent had increased by almost 60% by the start of 2021 compared to the nine-month period prior to April 1, 2020.
This new Act allows a person to apply to the Court to have the image removed from the internet, or any physical image destroyed. A person does not need to prove they have been damaged by the distribution of the image.
In order to be considered an intimate image, the image must be of a person engaging in a sexual act, nude, or shows a private body part. The image can also be a visual recording of the sexual act. The image must also have been distributed, or threatened to be distributed, meaning it must have been shared or threatened to be shared from its original location.
A few possible examples of this action would be:
(a) A current or ex-partner who shares an intimate image of their former partner without their consent to another person;
(b) A person who takes a nude photo of another and shares it to another person;
(c) A person who alters an image and places their ex-partner’s face on a nude photograph (i.e. a deepfake) and threatens to distribute the photograph;
(d) A person who makes a video recording of a couple engaging in a sexual act and distributes it to another person, or uploads it to a website or social media platform.
If the victim brings an action for damages, the court can declare that the distribution was unlawful, order the person to make every effort to remove the image, order an internet intermediary to remove or de-index the intimate image, order the person who distributed the image to pay damages, or make any other order that the court considers appropriate in the circumstances.
A person is not entitled to damages if the person in the intimate image consented to their distribution or was taken in a public place. If a person is in a bathing suit at a beach and has their photograph taken, however they do not like the photograph, that would not be considered an intimate image.
It also means that if a partner gives consent for their nude photo to be shared to a friend, then later retracted that consent, then an order will not be granted. If consent for sharing the photo is revoked however, then the person who shared the photo must make every reasonable effort to remove the intimate photo from the internet, delete or destroy the photo, or make it unavailable to others.
A person will also not be found liable if the intimate image was accidentally distributed, mistakenly believed they had consent, or the photo was shared in the public interest. This does not mean, however, that sharing a nude photo of a celebrity (or a local celebrity!) is in the public interest.
If you know of an intimate image that was distributed without your consent, and you wish to have the photo removed or want to seek damages against the person, contact Moss Hachey Law for a consultation.
