Nova Scotia Takes Another Swing at Curbing Modern Day Bullying: Intimate Images and Cyber-Protection Act

On October 26, 2017, the Nova Scotia legislature passed into law the Intimate Images and Cyber-protection Act (IICPA).[1] However, the Government has yet to bring the IICPA into force.[2]  The IICPA is in essence a second kick at the can after the Cyber-Safety Act[3]  was declared unconstitutional.[4]  The ICCPA seems to be based upon and gone further than Manitoba’s The Intimate Image Protection Act.[5] As always, these laws are laudable in their aim but has been yet to be proven if they are effective. Additionally, there are always concerns that this type of legislation will overly hamper freedom of expression and fair public comment.

The Purpose of the ICCPA is:

S.2

(a) create civil remedies to deter, prevent and respond to the harms of non-consensual sharing of intimate images and cyber-bullying;

(b) uphold and protect the fundamental freedoms of thought, belief, opinion and expression, including freedom of the press and other media of communication; and

(c) provide assistance to Nova Scotians in responding to non-consensual sharing of intimate images and cyber-bullying.

 

Unlike The Intimate Image Protection Act, CCSM c I87 the ICCPA has two grounds which are “cyber-bullying” and distribution of an intimate image without consent.

Cyber-bulling

The act defines “cyber-bullying”

S. 1:

(c) “cyber-bullying” means an electronic communication, direct or indirect, that causes or is likely to cause harm to another individual’s health or well-being where the person responsible for the communication maliciously intended to cause harm to another individual’s health or well-being or was reckless with regard to the risk of harm to another individual’s health or well-being, and may include

(i) creating a web page, blog or profile in which the creator assumes the identity of another person,

(ii) impersonating another person as the author of content or a message,

(iii) disclosure of sensitive personal facts or breach of confidence,

(iv) threats, intimidation or menacing conduct,

(v) communications that are grossly offensive, indecent, or obscene,

(vi) communications that are harassment,

(vii) making a false allegation,

(viii) communications that incite or encourage another person to commit suicide,

(ix) communications that denigrate another person because of any prohibited ground of discrimination listed in Section 5 of the Human Rights Act, or

(x) communications that incite or encourage another person to do any of the foregoing;

 

In my opinion, the ground of “cyber-bullying” can be broken down as:

1. The person was responsible for the communication; and
2. The communication was direct or indirect; and
   1. The person’s communication was made with malicious intent to cause harm to the health or well-being of the victim; or
   2. The person’s communication was made and was reckless to the risk of harm to the health or well-being of the victim; and
3. The communication causes harm or is likely to cause harm to the health or well-being of the victim.

Distribution of an Intimate Image Without Consent

The next ground which is in effect distribution of an intimate image without consent is a collection of provisions:

S.1

(d) “distribute without consent”, in respect of an intimate image, means to publish, transmit, sell, advertise or otherwise distribute the image to or make the image available to a person other than the person depicted in the image while

(i) knowing that the person in the image did not consent to the distribution, or

(ii) being reckless as to whether that person consented to the distribution;

…

(f) “intimate image” means a visual recording of a person made by any means, including a photograph, film or video recording,

(i) in which a person depicted in the image is nude, is exposing the person’s genital organs, anal region or her breasts, or is engaged in explicit sexual activity,

(ii) that was recorded in circumstances that gave rise to a reasonable expectation of privacy in respect of the image, and

(iii) where the image has been distributed, in which the person depicted in the image retained a reasonable expectation of privacy at the time it was distributed;

…

4 (1) A person depicted in an intimate image does not lose the person’s expectation of privacy in respect of the image if the person consented to another person recording the image in circumstances where the other person knew or ought reasonably to have known that the image was not to be distributed to any other person.

(2) A person depicted in an intimate image does not lose the person’s expectation of privacy in respect of the image if the person provided the image to another person in circumstances where the other person knew or ought reasonably to have known that the image was not to be distributed to any other person.

5 (1) An individual whose intimate image was distributed without consent or who is or was the victim of cyber-bullying may apply to the Court for an order under Section 6.

This myriad of provisions can be broken down, somewhat more simply, into the following element analysis:

1) The Victim is depicted in an intimate image and retained a reasonable expectation of privacy:

a) The victim is depicted in a visual recording; and

b) The victim is nude or breasts, genital organs, or anus, or engage in a sexual activity in the visual recording; and

2)  The victim retained a reasonable expectation of privacy at recording or distribution:

a)The image was recorded in circumstance giving rise to a reasonable expectation of privacy over the image; or

b) The victim at the time of distribution of the image retained a reasonable expectation of privacy; and

i.The consent of the victim to record the intimate image does not vitiate a reasonable expectation of privacy by the victim if the person knew or ought to reasonably known the image was not to be distributed; or

ii. The provision of an intimate image by the victim does not vitiate a reasonable expectation of privacy if the person knew or ought to reasonably known the image was not be distributed

3) The intimate image was distributed without consent:

a)The intimate image is published, transmitted, sold, advertised, distribution of the image, or otherwise mad available to a person other then the victim; and

b) The person knew or was reckless that the victim did not consent to distribution of the intimate image.

Discussion

The scope of the IICPA is to provide a legislative mechanism to halt or remove cyber-bullying communications or distribution of intimate images without consent, order that further communion be ceased, order a dispute resolution process be implemented, an order for damages or an accounting of profits (but not both), or any just and reasonable order. The scope of these orders is of course amiable, however, the aim of most of these orders is likely only to be fully effective in many scenarios. Specifically, any scenarios that involve the posting of cyber-bullying or intimate images on internet forms or sites leaves open the possibility that their content will be copied, shared, re-posted, saved and in essence live on in infinite forever causing emotional and reputational damages to the victim.  Notably this problem was addressed by Stinson J. in Doe 464533 v N.D a case involving the non-consensual publication of intimate images:

[10]        The foregoing facts are undisputed. They confirm that the video was available online for approximately 3 weeks, before it was “removed”. There is no way to know how many times it was viewed or downloaded or if and how many times it may have been copied onto other media storage devices (where it may remain) or recirculated.

In consequence, many of the orders may simply be ineffective in the modern world. Regarding damages or accounting of profits in many instances this will involve minors with no assets. However, an award for damages or an accounting of profits may have some teeth for Canadian websites that host cyber-bullying communication or intimate images.  This of course raises the issue of if the plaintiff can prove the defendant website had knowledge or was reckless that the content was either cyber-bullying or distribution of an intimate image without consent. Additionally, if the website is hosted in a foreign country this brings upon issues of being able to enforce the order.

Notably the act in s.10 sets out that an order on the ICCPA does not limit any common law claim or remedy a person may have by common law or statue. This in effect leaves open the door for a common law claim of intrusion upon seclusion or publication of embarrassing facts. As noted above the aims of this IICPA are laudable but it will be some time before its effectiveness can be assessed.

[1] Intimate Images and Cyber-protection Act, SNS 2017, c 7.

[2] Intimate Images and Cyber-protection Act, SNS 2017, c 7., s. 29.

[3] Cyber-safety Act, SNS 2013, c 2.

[4] Crouch v. Snell, 2015 NSSC 340.

[5] The Intimate Image Protection Act, CCSM c I87.