Limitations with Current Revenge Porn Laws in Canada
In Canada, it is a criminal offence under section 162.1 of the Criminal Code to distribute intimate images of another person without that person’s consent. The offence, known as publication, etc., of intimate images without consent, states that anyone who has published, distributed, transmitted, sold, made available or advertised an intimate image of a person, knowing they did not consent, or being reckless as to whether that person would consent, is guilty of a hybrid offence. This means the Crown prosecuting the case can choose to elect to proceed summarily, which carries lesser penalties, or by indictment, which carries a longer maximum penalty of up to five years in prison. Since publication, etc., of an intimate image without consent is a hybrid offence, there is effectively no statute of limitations, meaning officers can lay charges against an individual years, or even decades after the intimate image was shared. Where the offence occurred more than a year prior, the Crown would simply elect to proceed by indictment to avoid the statute of limitations. The major limitation with the current section of the Code is the types of intimate images it covers. The current wording creates a loophole that continues to grow as AI technology improved.
AI technology has ushered in a new era of revenge porn and other illegal pornographic content, allowing people to create deepfakes and deepnudes of individuals and share them on the internet. A deepfake is created when an individual takes a real photo of someone and uses AI technology to alter the photo. In some cases, the alterations include making the individual appear nude, or appear to be engaging in explicit sexual activity.
Current laws do not prohibit this type of material from being created and distributed, leaving a gap in the law where people can use AI technology to create and distribute revenge porn without penalty. For victims of this type of revenge porn, there is currently no criminal legal recourse. Police are reluctant if not unwilling to lay charges where the intimate images in question are not authentic because they have been created using AI technology. Despite the fact that the photos are not real, the humiliation and personal stress they cause is very real.
In early October 2023, the Federal government of Canada began debating Bill S-12, an Act to amend the Sex Offender Information Registration Act (SOIRA) and the Criminal Code. When prosecuting publication, etc., of intimate images offences, both SOIRA and the Criminal Code come into play. Where an offender is convicted of the offence under the Criminal Code, they may be subject to a SOIRA order by the Court. While SOIRA orders are not mandatory for a publication, etc., of an intimate image without consent conviction, the Crown may request a SOIRA order, and the Court may choose to impose one. Critics have noted that Bill S-12 had the opportunity to implement new laws protecting Canadian’s from deepfake revenge porn but failed to do so. As the law currently stands, an individual who creates deepfake pornography of another adult has not necessarily committed a crime. It is important to note than an individual who creates or consumes deepfake child pornography is likely to be charged with a child pornography offence.