Is Publishing An Image Without Consent Illegal?
As society evolves, and our core values change, along with technology, the law tends to develop as well.
Section 162.1 of the Canadian Criminal Code reads as follows:
162.1(1) Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty
(a) of an indictable offence and liable to imprisonment for a term of not more than five years;
(b) of an offence punishable on summary conviction.
Definition of intimate image
(2) In this section, intimate image means a visual recording of a person made by any means including photographic, film, or video recording,
(a) in which the person is nude, is exposing his or her genital organs or anal region or her breasts or is engaged in explicit sexual activity;
(b) in respect of which, at the time of the recording, there were circumstances that gave rise to a reasonable expectation of privacy; and
(c) in respect of which the person depicted retains a reasonable expectation of privacy at the time the offence is committed.
(3) No person shall be convicted of an offence under this section if the conduct that forms the subject-matter of the charge serves the public good and does not extend beyond what serves the public good.
Question of fact and law, motives
(4) For the purposes of subsection (3),
(a) it is a question of law whether the conduct serves the public good and whether there is evidence that the conduct alleged goes beyond what serves the public good, but it is a question of fact whether the conduct does or does not extend beyond what serves the public good; and
(b) the motives of an accused are irrelevant.
The Criminal Code therefore captures all ways that these images could be accessed and shared such as through social networking or email.
WHAT DEFENCES ARE AVAILABLE?
As indicated above, the person being recorded must be in circumstances that reflect a reasonable expectation of privacy, and therefore if someone is exposing themselves in public, this may be difficult for the Crown to prove. Reasonable expectation of privacy is one essential element a Crown has to prove in the case. There may also be defences in relation to serving the public good, and not going beyond serving the public good.
Publishing an intimate image without consent is not one of the many sexual offences that can trigger a sexual offender registry order.
GET LEGAL ADVICE
If you or someone you know has been charged with this offence, you should contact a lawyer as soon as possible to discuss your case and the prospects of beating these charges.