On March 30th, 2023, less than a month after being introduced to the legislature, the BC Government passed Bill C-12 and enacted the Intimate Images Protection Act. The Act provides individuals depicted in an intimate image with recourse when someone threatens to or does share their image without their consent.
What is an “intimate image”?
The Act deals with intimate images, which is defined to encompass photographs, videos, live streams (including digitally altered images or videos) that show or represent an individual, even where the individual is not identifiable, engaging in a sexual act, nude or nearly nude, or with genital organs, anal region or breasts exposed. The term is broadly defined and covers deep fakes or AI-generated images.
What remedies are available if an intimate image is shared without consent?
The legislation gives individuals a streamlined path to the removal of their intimate images and creates a civil action process for the non-consensual sharing, including threats of sharing, of an intimate image. Currently, applications to remove intimate images must be made at the Supreme Court of British Columbia, which can discourage individuals from coming forward because of the time, cost, and complexity of navigating the court process.
The new path allows an individual to make an application at the Civil Resolution Tribunal, rather than through the Courts, which lowers some of the barriers stopping individuals from seeking recourse. Where an image is distributed without consent, the individual depicted in the image can apply for an order that the image be removed, deleted, and de-indexed. To be eligible for such an order, the applicant need only show that the image is an intimate image depicting the applicant, and that another person distributed the image without their consent. Special rules are in place to deal with intimate images of deceased individuals and minors.
The Act further provides that an individual depicted in an intimate image can claim relief, without proof of damage, where the image is distributed or threatened to be distributed without their consent. This new cause of action provides a clear route to holding the perpetrator liable and compensating the victim for the wrongful conduct.
Can consent be revoked?
Helpfully, the Act legislates a reminder that consent is revocable. If an individual has previously consented to the distribution of an intimate image, they can revoke that consent later on by communicating their revocation to the person who distributed the image. Once an individual revokes consent, the person that has distributed the image is legally required to “make every reasonable effort to make the intimate image unavailable to others”. Failing to make every reasonable effort to make the image unavailable to others, or otherwise sharing the image after consent has been revoked constitutes non-consensual distribution and is an unlawful offence under the Act.
Today, online sexual exploitation is on the rise. Youth are peculiarly vulnerable and are often too ashamed to come forward when an intimate image is shared. This legislation builds a path to justice for individuals that are often dissuaded from coming forward with complaints due to shame or the limited, complex and expensive legal options previously available to them. It will make it easier to hold perpetrators accountable for sexual exploitation.
While the Intimate Images Protection Act has been passed, it is not yet in force and regulations must be put in place before the legislation takes effect.
