Is It a Crime to Post Intimate Photos of Someone Without Consent in Canada?

Yes. Since March 10, 2015, it has been a criminal offence to share intimate images of a person without their consent. Publishing such images on Facebook, Instagram, or any other social media platform is a crime under Section 162.1 of the Criminal Code of Canada.

This law was introduced to address the growing problem of “revenge porn” and other forms of online exploitation where intimate images are shared without permission. However, the offence applies regardless of the motivation behind sharing the images.

What Does the Canadian Criminal Law Say?

Section 162.1(1) of the Criminal Code states that everyone who knowingly publishes, distributes, transmits, sells, makes available, or advertises an intimate image of a person knowing that the person did not consent, or being reckless as to whether they consented, is guilty of:

• An indictable offence punishable by imprisonment for up to five years, or
• An offence punishable on summary conviction

The law covers a wide range of conduct, including publishing images online, sending them via email, sharing them through messaging apps, or distributing them through any other means.

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What Is Considered an “Intimate Image”?

Section 162.1(2) defines an intimate image as a visual recording of a person made by any means, including photographic, film, or video recording, where:

• The person is nude, exposing their genital organs, anal region, or breasts, or is engaged in explicit sexual activity
• At the time of the recording, some circumstances gave rise to a reasonable expectation of privacy
• The person depicted retains a reasonable expectation of privacy at the time the offence is committed

The law is not intended to protect people from merely embarrassing images. It specifically addresses the unlawful publication of private images where the subject had a reasonable expectation of privacy.

What Is the Role of “Reasonable Expectation of Privacy”?

For a conviction under this section, the Crown must prove that the person depicted had a reasonable expectation of privacy both when the image was recorded and when the offence was committed.

If the image depicts intimacy that occurred in a scenario where the person could not have had a reasonable expectation of privacy, this may provide grounds for a defence. For example, if someone was nude in public, such as on a nudist beach, it could be argued that there was no reasonable expectation of privacy.

The person must also have retained their privacy interest at the time the images were shared. If someone previously consented to the public distribution of the images, they may have relinquished their privacy interest.

Does the Motivation of the Person Sharing the Image Matter?

No. The motivation of the person sharing the image is irrelevant under the law. Even if the accused was not motivated by malice, revenge, or any intent to harm the person depicted, they can still be convicted.

This means that sharing intimate images without consent is a crime, whether it was done for revenge against an ex-partner, to make money, to gain an advantage in a dispute, or for any other reason.

What Are the Penalties of Posting an Intimate Photo Without Consent?

The consequences depend on how the Crown chooses to prosecute the case.

Indictable Offence: The maximum penalty is five years’ imprisonment.

Summary Conviction: The maximum penalty is up to two years less a day imprisonment.

After serving any jail time, offenders may be subject to probation and a prohibition order restricting their internet, cell phone, and computer usage, sometimes for an extended period.

Can Judges Order Removal of Images?

Yes. 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 depicted. This provides victims with a legal mechanism to have non-consensual intimate images taken down.

What If the Person Depicted Is Under 18?

If the person in the images is under 18 years of age, the accused may face child pornography charges, which is a far more serious offence under the Criminal Code. Child pornography convictions carry severe penalties and require registration on the sex offender registry.

Currently, offenders convicted of publishing intimate images without consent involving adults do not have to register on the sex offender registry. However, the laws in this area continue to evolve.

What Defences Are Available Against a Charge of Publishing Intimate Images?

Several defences may be available depending on the circumstances:

Public Good Defence: Section 162.1(3) provides that no person shall be convicted if the conduct serves the public good and does not extend beyond what serves the public good. This is a limited defence typically applicable in cases involving journalism or other matters of public interest.

No Reasonable Expectation of Privacy: If the person depicted had no reasonable expectation of privacy when the images were taken or had relinquished that expectation, this may be a valid defence.

Consent: If the subject of the images consented to the publication or distribution, the accused cannot be convicted. However, consent to being photographed is not the same as consent to distribution.

Mistaken Identity: The accused may not have been the person who distributed the material. Someone else may have accessed their computer and shared the images.

Inadvertent Sharing: If the publication was not intentional, the accused may not be found guilty. The offence requires that the accused acted knowingly or recklessly.Charter Violations: If Charter rights were violated during the investigation, arrest, or charge process, evidence obtained through improper searches may be inadmissible in court.

What Other Criminal Offences Relate to Online Conduct?

Depending on the circumstances, other Criminal Code offences may also apply to actions taken on social media:

• Criminal harassment
• Uttering threats
• Intimidation
• Mischief in relation to data
• Unauthorised use of a computer
• Identity fraud
• Extortion
• False messages, indecent or harassing telephone calls
• Counselling suicide
• Incitement of hatred
• Defamatory libel

Have You Been Charged With Publishing Intimate Images?

If you are facing charges for publishing intimate images without consent, resist the temptation to speak with the police before consulting a lawyer. You may inadvertently incriminate yourself even if you are innocent.

Pyzer Criminal Lawyers has over two decades of experience defending clients facing serious criminal charges throughout Toronto and the GTA. We understand the complexities of these cases and will work to protect your rights and reputation. Contact us at (416) 658-1818 for a free, confidential consultation.