Publication of an Intimate Image without Consent

Publication of an Intimate Image without Consent

The offence of publication of an intimate image without consent is outlined in section 162.1(1) of the Criminal Code.

A person commits the offence of publication of an intimate image without consent when they publish, transmit, sell, make available or advertise, without the subject’s consent, a recording or image wherein the subject is nude, is exposing their breasts, genitals, or anus, or is engaged in sexual activity and has a reasonable expectation of privacy.

Examples

Person A sends a nude picture of person B to their fraternity brothers even though person B told person A not to share this image with anyone.

Person C makes a Facebook post advertising for sale a sexually explicit video they have made with person D, even though person D has previously expressed that he only wanted himself and person C to know about this video.

Cases

R. v. M.R., 2017 ONCJ 943

In R. v. M.R., the accused was convicted of one count of distributing intimate images without consent after he sent nude images of the complainant to many of her friends and family members across the world without the complainant’s consent out of anger after the accused and complainant had broken up.

R. v. J.S., 2018 ONCJ 82

In R. v. J.S., the accused was convicted of one count of publishing intimate images without consent when he posted 11 videos of him and the complainant engaging in sexual activity on various websites without her consent.

R. v. J.R., 2018 ONCJ 851

In R. v. J.R., the accused pled guilty to one count of distributing an intimate image without consent when he created a Backpage.com advertisement for his ex-wife which included her name and phone number and a photograph of her engaged in explicit sexual activity that she had not consented to him sharing with anyone.

Offence Specific Defence(s)

Public Good

If the person is publishing the intimate image for the public good, then the person may not be convicted of the offence of publication of an intimate image without consent. For example, where the person is a law enforcement agent creating copies of the intimate image to preserve as evidence, they may not be convicted of the offence of publication of an intimate image without consent.

Consent

Where the person in the image consented to the publication of the images, or the person who published the image genuinely believed that the person in the image consented to its publication, then the person who published the image may not have completed the offence of publication of an intimate image without consent.

Unknowingly Publishes

Where the person does not realize that they have distributed the intimate image or does so unintentionally, they may not have completed the offence of publication of an intimate image without consent. For example, where person A means to attach an image of their cat to an email for person B but instead accidentally attaches an intimate image of person C, who has not consented to this image being shared with anyone other than person A, then person A may not have completed the offence of publication of an intimate image without consent.

Not an Intimate Image

Where the image in question is not a recording or image wherein the subject is nude, exposing their breasts, genitals, or anus, or engaged in sexual activity and has a reasonable expectation of privacy, the person who publishes it will not have completed the offence of publication of an intimate image without consent. For example, if the image person A publishes shows person B falling on the street in an embarrassing way, or is taken from their hotel lobby’s security camera, person A will not have completed the offence of publication of an intimate image without consent.

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