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Non-consensual Sharing of Intimate Images

Under The Privacy Act individuals can sue for compensation and other remedies when they have been the victim of the unauthorized sharing of intimate images.

Intimate images include things like photos or videos where an individual is nude, partially nude, or engaged in explicit sexual activity. At the time of the photograph or recording, the individual depicted must have had a reasonable expectation of privacy.

Individuals can consent to the images being recorded or agree to share or exchange existing images without losing their expectation of privacy. In other words, an individual can agree to have their image recorded or to share an intimate image with someone else with the intention that it remain private between the parties. Sharing intimate images beyond these circumstances is a violation of the Act.

The Act provides victims with remedies to address the harm caused by this type of abusive behaviour. Remedies include...

  • damages (general, special, aggravated and punitive)
  • injunctions (prohibiting further distribution)
  • recovery of any profits the defendant received as a result of the distribution of an intimate image

Civil suits can be in addition to criminal charges or used as an alternative to criminal charges. In civil cases, it is up to the individual who shared the intimate images to prove that they had consent to do so.

What the Courts are Saying

The Privacy Act was amended in 2018 to include provisions dealing with the unauthorized sharing of intimate images. In late 2019, one Saskatchewan woman filed a civil lawsuit against her ex-lover for distributing intimate images of her without her consent. The defendant was already serving jail time for criminal charges stemming from the same incidents.

The woman's lawyer has indicated that he believes this is the first such action of its kind in Saskatchewan. While the matter has not yet been heard by the court, the plaintiff has stated that the defendant's actions were "highly invasive, degrading and morally damaging." The civil suit also includes a claim for the intentional infliction of mental distress, a separate tort.

When explicit images of a person make their way around an online office chat system or email server, or get put up on the factory floor, it can immediately decimate the victim's professional reputation. Particularly when such images target a woman, it forces even well-meaning employees to think about their coworker not for her abilities, but for her body.

This kind of demeaning sexual harassment can cause immense emotional harm, even to the point of resulting in physical illness. It can force a person to leave gainful employment to be rid of the hostile work environment caused by the exposure of his or her intimate images.

~Distributing Nude Photographs is Sexual Harassment and a Crime in New York City; Eisenberg & Baum Employment Discrimination Blog

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The Shift Project is funded by the Department of Justice and delivered by the Public Legal Education Association of Saskatchewan (PLEA).

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