In a first-of-its-kind case, a B.C. tribunal has 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 Act earlier this year giving the Civil Resolution Tribunal the jurisdiction to address these types of claims to provide an alternative to the more difficult, lengthy and potentially costly options of trying to pursue redress through criminal or civil court.
The tribunal published its first decision online Tuesday in a case where a “nearly nude” image of a man shared during a “flirtatious” exchange of direct messages was publicly posted by an anonymous account on the social media platform X, formerly known as Twitter.
The plaintiff, identified by the initials B.D.S., brought the claim against a man who is identified by the initials M.W. This man, the decision says, was not responsible for the public social media post but was found to have shared images B.D.S sent him in a “private, intimate chat” without permission.
“The internet does not forget. While M.W. did not post them, by sharing the images he lost control of them. Even if the images are removed from X, it is impossible for B.D.S. to be certain they will never resurface because it is impossible to know if anyone has copied them,” tribunal vice-chair Eric Regehr wrote in his decision.
What is a ‘nearly nude’ image?
The first question the tribunal had to answer in the case was whether or not the images B.D.S. shared were intimate ones – which the legislation defines as ones that “depict or show the applicant as engaging in a sexual act, nude or nearly nude, or exposing their genitals, anal region, or breasts.”
In the images, B.D.S. was shirtless but wearing underwear, he was not engaging in a sexual act nor was he exposing any of the body parts listed, the decision noted.
“Nearly nude” is not precisely defined in the law and so Regehr was left to interpret its meaning and decide if it applied in this case.
“It is somewhat ambiguous. The overall definition of ‘intimate image’ makes clear that the overarching purpose of the IIPA is to promote autonomy and privacy over images that are either intentionally sexual (like an intimate selfie) or may be sexualized by others (like a surreptitiously taken image in a change room or bathroom),” he wrote.
“The term ‘nearly nude’ must be interpreted in that spirit.”
While one obvious component of being “nearly nude” is a lack of clothing – Regehr said context is also key, a point he illustrated using the example of a woman in a bikini.
“Surreptitious footage from a change room of a woman trying on a bikini would likely be an intimate image, whereas a photo of a public beach that includes a distant shot of the same woman in the same bikini likely would not be,” he explained.
In this case, B.D.S. was wearing underwear that were “small but not more revealing than many swimsuits,” the decision said – but the photos were selfies and they were taken and shared for a “flirtatious or seductive purpose.”
While B.D.S. was not exposing his genitalia, “the outline of BDS’s erect penis is plain to see” in one photo. In the other, he is pulling down his underwear to expose “much” of one of his buttocks.
“The IIPA is designed to protect a person’s autonomy over photos like these,” Regehr wrote.
Were the images shared without consent?
The second question the tribunal had to answer was if B.D.S. had a reasonable expectation of privacy when sharing the image with M.W. The tribunal found that he did.
“The photos were taken at his home and he sent the photo only to M.W. as part of a private, intimate chat. He never gave M.W. consent to share them with anyone,” Regehr wrote.
M.W. admitted to sharing the images with another person, but argued he had a valid reason to do so, namely to help a woman who had been bullied online identify the person who allegedly harassed her.
M.W. also said that he attempted to crop the images so the intimate parts were not visible. However, the tribunal found that regardless of M.W.’s motivation – the images were not actually cropped.
“I find that M.W. clearly went far beyond what was necessary to help (the woman) identify B.D.S. This only required a photo of his face,” Regehr wrote.
Damages and orders
B.D.S was awarded the maximum damages the CRT can allow, which is significantly lower than what Canadian courts have awarded in the “very few published cases” involving the 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 venue. B.D.S. chose the CRT’s faster and simpler process and in doing so limited his claim to the CRT’s $5,000 monetary limit,” Regehr wrote.
In addition to damages, the tribunal also made a number of protection orders.
First, M.W. and anyone else who shared the images was ordered to delete or destroy them “immediately” and to make “every available effort” to prevent them from being shared in the future. Those efforts must include an attempt having them removed from social media platforms and de-indexed from search engines.
In addition, “internet intermediaries” are ordered to remove the photos, destroy them and de-index them.
Regehr noted that the legislation allows for further penalties in cases where an individual or company does not comply with these orders. Individuals can be fined $500 a day to a maximum of $10,000 and companies can be fined $5,000 per day up to a maximum of $100,000.
