Since 2015, publishing an intimate image of someone else without their permission is a crime in Canada. Section 162.1 of the Criminal Code captures all ways in which intimate images may be shared, including through physical delivery, social networking, email, or other means by publishing, distributing, transmitting, selling, making available or advertising an intimate image of another person knowing that the person depicted in the image did not give their consent to that conduct.
Frequently Asked Questions about Publishing An Intimate Image Without Consent:
An “intimate image” does not include photos that are simply embarrassing or unflattering. The term “intimate images” is intended to refer to images that relate to the core of a person’s privacy interest. These images often depict explicit sexual activity or nudity or partial nudity that is captured on film or video consensually. An “intimate image” is defined as a visual recording of a person made by any means including a photographic, film or video recording, in which the person engaged in any of the following situations:
- the person is nude
- the person is exposing their genital organs, anal region or breasts
- the person is engaged in explicit sexual activity
In cases where the intimate image depicts a person under the age of 18 engaged in explicit sexual activity or the dominant purpose of the recording is the depiction for a sexual purpose of that person’s sexual organs or anal region, the image constitutes child pornography and is captured by the Criminal Code of Canada‘s child pornography provisions found in section 163.1.
At the time of the recording, the person being recorded must be in circumstances that gave rise to a reasonable expectation of privacy before the person charged with publishing the image can be convicted of the crime.
In addition the challenging that the Crown Attorney hasn’t proven one of the essential elements of the crime, another possible defence is arguing that the conduct that forms the subject matter of the charge serves the public good and does not extend beyond what serves the public good. The motives of an accused person are irrelevant in determining this question. A person charged can also raise the issue that the image was inadvertently shared as opposed to intentionally published.
This offence can be prosecuted by summary conviction or by indictment. When prosecuted by summary conviction, the maximum penalty is six months imprisonment. When prosecuted by indictment, the maximum sentence is five years’ imprisonment.
In addition to any other punishment or condition that may be imposed by the court, someone convicted under this section may also be subject to an order prohibiting them from using the Internet or other digital network for life.
Publishing an intimate image without consent is not one of the many sexual offences that can trigger a sexual offender registry order.
If you require further advice on this issue, please feel free to contact Daniel Brown Law at (416) 297-7200 to book a consultation at either of our Toronto or Vaughan locations.