In a first-of-its-kind case, a British Columbia court ruled on a dispute involving the non-consensual sharing of intimate images, awarding damages and issuing orders that the photos be destroyed and taken offline.
The province introduced the Intimate images protection law earlier this year granting the Civil Resolution Tribunal jurisdiction to address these types of claims to provide an alternative to the more difficult, lengthy and potentially costly options of attempting to obtain redress through a criminal or civil court.
the court posted its first decision online on Tuesday in a case where a “near-nude” image of a man shared during a “flirtatious” direct message exchange was publicly posted by an anonymous account on social media platform X, formerly known as Twitter.
The plaintiff, identified by the initials BDS, filed the lawsuit against a man identified by the initials MW. This man, the decision says, was not responsible for the public social media post, but he was found to have shared images BDS sent him in a “private and intimate chat” without permission.
“The Internet does not forget. While MW did not publish them, by sharing the images it lost control over them. Even if the images are removed from X, it is impossible for BDS to be sure that they will never appear again because it is impossible to know if anyone has copied,” the court’s vice president, Eric Regehr, wrote in his decision.
What is an ‘almost nude’ image?
The first question the court had to answer in the case was whether the images shared by BDS were intimate, which the legislation defines as those that “depict or show the applicant engaging in a sexual act, naked or nearly naked, or exposing his genitals , anal region or breasts”.
In the images, BDS was shirtless but wearing underwear, was not engaging in a sexual act or exposing any of the listed body parts, the decision states.
“Almost naked” is not precisely defined in the law, so Regehr had to interpret its meaning and decide whether it applied in this case.
“It’s somewhat ambiguous. The general definition of ‘intimate image’ makes clear that the general purpose of the IIPA is to promote autonomy and privacy over images that are intentionally sexual (such as an intimate selfie) or that may be sexualized by others (such as an image taken surreptitiously in a locker room or bathroom),” he wrote.
“The term ‘almost naked’ should be interpreted in that spirit.”
While an obvious component of being “almost naked” is the lack of clothing, Regehr said context is also key, a point she illustrated using the example of a woman in a bikini.
“Surreptitious locker room images of a woman trying on a bikini would likely be an intimate image, while a photo from a public beach that includes a distant shot of the same woman in the same bikini probably would not be,” he explained.
In this case, BDS was wearing underwear that was “small but no more revealing than many swimsuits,” according to the decision, but the photos were selfies and were taken and shared for a “flirtatious or seductive purpose.”
While BDS did not expose his genitals, “the outline of BDS’s erect penis is clearly visible” in one photo. In the other, he pulls down his underwear to reveal “a large part” of one of his buttocks.
“The IIPA is designed to protect a person’s autonomy over photographs like these,” Regehr wrote.
Were the images shared without consent?
The second question the court had to answer was whether BDS had a reasonable expectation of privacy in sharing the image with MW. The court concluded that this was the case.
“The photos were taken at his home and he sent them only to MW as part of a private and intimate conversation. He never gave MW consent to share them with anyone,” Regehr wrote.
MW admitted to sharing the images with someone else, but argued that she had a valid reason for doing so, namely to help a woman who had been harassed online identify the person who allegedly harassed her.
MW also said that he tried to crop the images so that the private parts were not visible. However, the court concluded that, regardless of MW’s motivation, the images were not actually cropped.
“I think MW clearly went above and beyond what was necessary to help (the woman) identify BDS. She only required a photo of her face,” Regehr wrote.
Damages and orders
BDS was awarded the maximum damages the CRT can allow, which is significantly less than what Canadian courts have awarded in the “very few published cases” involving non-consensual sharing of intimate images.
“The IIPA empowers people to choose between the CRT, the provincial court and the Supreme Court when claiming damages. There are pros and cons to each place. BDS chose the quicker and simpler process of the CRT and in doing so limited its claim $5,000 monetary limit,” Regehr wrote.
In addition to damages, the court also issued a series of protective orders.
First, MW and anyone else who shared the images were ordered to delete or destroy them “immediately” and to make “all available efforts” to prevent them from being shared in the future. Those efforts should include an attempt to remove them from social media platforms and deindex them from search engines.
Additionally, “Internet intermediaries” are ordered to remove the photographs, destroy them and deindex them.
Regehr noted that the legislation allows for additional penalties in cases where an individual or business fails to comply with these orders. Individuals can be fined $500 per day up to a maximum of $10,000 and businesses can be fined $5,000 per day up to a maximum of $100,000.