Law / Canada / Newfoundland and Labrador
Intimate Images Protection Act, tort of distributing an intimate image without consent
In force.
A sensitive categories rule binding public and private bodies.
- Private right of action
- Yes
- Obligation class
- Consent, Prohibition
As of .
What it requires
- Do not distribute an intimate image of another person, by publishing, transmitting, selling, advertising or otherwise making it available to anyone other than the person depicted, without that person's consent (ss. 3, 4(1)).
- Do not distribute an intimate image where you know the person depicted did not consent or are reckless as to whether the person consented (s. 4(2)).
- Do not rely on the person having consented to the recording or having given you the image: the person keeps the expectation of privacy where you knew or ought reasonably to have known that the person did not consent to further distribution (s. 6).
- Be ready to establish reasonable grounds to believe that you had ongoing consent to distribute an intimate image, because once an action is commenced non-consent is presumed (s. 7).
- Do not publish or make public the names of the parties to an action for non-consensual distribution, or information that may identify them, until the court decides whether to order a publication ban, and never publish the name or identifying information of a party who is under the age of majority (s. 10(1), (3)).
These lines are LexLint's reading of the law's text, as of .
What this law does
An intimate image is a visual recording of a person made by any means, including a photograph, film or video recording, in which the person is nude or is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, that was recorded in circumstances that gave rise to a reasonable expectation of privacy with respect to the image and, where the image has been distributed, in which the person depicted retained a reasonable expectation of privacy at the time it was distributed.
A person distributes an intimate image where that person publishes, transmits, sells, advertises or otherwise makes the intimate image available to a person other than the person depicted in it. It is a tort for a person to distribute an intimate image of another person without the other person's consent. The tort is committed where the person knows that the person depicted did not consent to the distribution or is reckless as to whether the person depicted consented.
An action for the non-consensual distribution of an intimate image may be commenced without proof of damage. Where an action is commenced, it is presumed that the image was distributed without the consent of the person depicted, and the defendant must establish that he or she had reasonable grounds to believe that he or she had ongoing consent for distribution. It is a defence to show that the distribution is in the public interest and does not extend beyond what is in the public interest.
The court may award general, special, aggravated and punitive damages, order an account of profits, issue an injunction and make any other order that it considers just and reasonable. Where an action is commenced, a person shall not publish or make public the names of the parties or any information that may identify them until the court determines whether to issue a publication ban. A person who contravenes the publication rules in subsection 10(1) or (3) commits an offence. The Act was assented to on .
When LexLint raises it
When your app profile says your app operates a social platform or reuses other publishers' content.