- Since March 10, 2015 it has been a criminal offence to share intimate images of a person without the consent of the person in the image.
- It follows that publicizing such an image on Facebook or on any other social media websites would be a criminal offence.
- Section 162.1(1) pertains to publication etc., of an intimate image without consent:
Publication, etc., of an intimate image without consent
162.1 (1) 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, is guilty
(a) of an indictable offence and liable to imprisonment for a term of not more than five years; or
(b) of an offence punishable on summary conviction.
Definition of intimate image
(2) In this section, intimate image means a visual recording of a person made by any means including a photographic, film or video recording,
(a) in which the person is nude, is exposing his or her genital organs or anal region or her breasts or is engaged in explicit sexual activity;
(b) in respect of which, at the time of the recording, there were circumstances that gave rise to a reasonable expectation of privacy; and
(c) in respect of which the person depicted retains a reasonable expectation of privacy at the time the offence is committed.
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(3) 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.
Marginal note: Question of fact and law, motives
(4) For the purposes of subsection (3),
(a) it is a question of law whether the conduct serves the public good and whether there is evidence that the conduct alleged goes beyond what serves the public good, but it is a question of fact whether the conduct does or does not extend beyond what serves the public good; and
(b) the motives of an accused are irrelevant.
- The purpose of this offence is to protect the privacy a person has in his or her nudity or sexual activity.
- If the image depicts an image of intimacy that occurred outside of a scenario where the person could have had a reasonable expectation of privacy it is possible for the defence to argue against the charge.
- To be convicted the image would have to be one where there person depicted had a reasonable expectation of privacy at the time of the recording and had not relinquished his or her privacy interest at the time of the offence.
- However, the motivation of the person sharing the image is irrelevant.
- Even if they were not motivated by malice or revenge they can still be convicted.
- Judges have the authority to order the removal of intimate images from the Internet if the images were posted without the consent of the person or persons in the image.
Several other Criminal Code offences also pertain to action taken on social media that may constitute a criminal offence:
- Depending on the action taken, the following criminal offences could be charged:
- Criminal harassment
- Uttering threats
- Mischief in relation to data
- Unauthorized use of computer
- Identity fraud
- False messages, indecent or harassing telephone calls
- Counselling suicide
- Incitement of hatred; and
- Defamatory libel
- If you have been charged with a criminal offence in relation to an action taken on social media or any other criminal offence contact Kostman and Pyzer, Barristers for advice today!