Revenge Porn, DeepFakes and DeepNudes Lawyer

Revenge porn offences have become more and more common in that last decade. Both criminal and civil courts have seen an influx in cases related to the nonconsensual distribution of intimate images. Those convicted in criminal court face significant penalties, with courts citing the often-irreparable harm these offences can cause to victims. Similarly, those sued for revenge porn in civil court face significant monetary penalties including costs if unsuccessful in defending the suit.

If you have been charged with revenge porn, or are being sued, it is important to retain experienced legal counsel to assist you. Counsel can guide you through the process and protect your rights to ensure all legal bases are covered. It is possible for a victim of revenge porn to make a criminal complaint against the accused and also to sue them in civil court. Where the accused is convicted in criminal court, it will be even easier for the victim to win in civil court. Experienced counsel can ensure your rights are protected from both angles to mitigate risk as much as possible.

The Firm represented an individual charged with extortion, criminal harassment, and publication etc., of intimate images without consent in the case of R. v. A.C. [2024]. The accused was charged after sending repeated online messages to a woman who had communicated to him that she did not wish to be contacted. She further alleged that the accused had shared intimate images of her online and threatened to share more if she did not communicate with him. After the complainant reported the matter to law enforcement, they got a search warrant for the accused’s residence and seized several electronic devices. The Firm conducted a detailed analysis of the material found on the laptop and determined that the images did not meet the definition of an intimate image. The Firm uncovered various other procedural weaknesses with the Crown’s case and used them to secure a withdrawal of all charges.

In the Firms File No. 4***6, the Firm represented an individual sued civilly for revenge porn. The defendant had sent graphic sexual photos and videos of a woman, without her consent, to a group chat with a large number of people in it. Some of the individuals in the chat knew the plaintiff personally. The Firm litigated the matter in Ontario for several years, ultimately showing that the defendant’s privacy had been unlawfully breached by the plaintiff while the plaintiff was attempting to gather evidence. The Firm was able to leverage this information to resolve the issue with a positive outcome.

What is Distribution of Intimate Images without Consent?

The offence of distribution of an intimate image without consent is contained in section 162.1 of the Criminal Code. It states that an individual is guilty of an offence when they knowingly distribute, publish, transmit, sell, advertise, or make available an intimate image of another person without that person’s consent.

In practice, this means that an individual is guilty of the offence when they share an intimate image of someone with anyone else without the person depicted in the photos consent. This includes texting a photo or video to someone, posting a photo of video online, or even simply showing a photo or video to someone else without consent.

The Code also provides a definition of “intimate image.” An intimate image is any photo or video that depicts a person who is nude or exposing their genitals, anus, or breasts or is engaged in sexual activity. The photo or video must have been recorded in a situation where the individual in the photo or video had a reasonable expectation of privacy and retained that reasonable expectation of privacy when the offence is committed.

This means that if the person depicted in the photo or video had a reasonable expectation of privacy (i.e. were in private) then the photo or video cannot be shared. If the individual was in public however, then they have no expectation of privacy and an individual who records them and shows other people is not guilty of an offence.

How to Beat a Distribution of Intimate Images Charge?

To prove an accused guilty of distribution of intimate images without consent, the Crown is required to prove that the image met the definition of an intimate image, that the image was taken when the complainant had a reasonable expectation of privacy, and that the complainant retained a reasonable expectation of privacy in the image at the time the accused shared it. If the Crown is unable to prove any of these elements, the accused cannot be convicted.

To develop a successful defence, the defence will first review the disclosure material to better understand the evidence the Crown intends to rely upon. The defence can then begin to attack any of the three elements that make up the offence.

For example, the defence may argue in certain cases that the images do not meet the definition of an intimate image. If the images do not depict the breasts, genitals or anus region of the complainant, or the complainant engaging in sexual activity, the image will not be considered an intimate image. An example includes a situation where the Crown intends to rely upon an image that depicts the complainant in lingerie but does not depict the complainant’s breasts, anus, or genitals. In that situation, the Crown’s case will fail.

Alternatively, the defence may argue that the complainant did not have a reasonable expectation of privacy at the time the image was taken or at the time it was shared. If, for example, the image the accused shared was already available to the public, the accused may not be convicted. In this scenario the Court will consider whether the complainant retained control over the image(s) despite them being available to the public.

Will I go to Jail for Revenge Porn?

Pursuant to the Criminal Code, the maximum sentence for an offender convicted of distribution of intimate images without consent is five years in prison where the Crown proceeds by indictment and two years less a day in prison where the Crown proceeds summarily. That being said, those convicted rarely receive the maximum penalty. Courts do, however, regularly sentence offenders to custody for revenge porn offences.

In practice, Courts sentence offenders on a case-by-case basis with a sentence that is tailored to the specific accused and to the allegations they have been convicted of. When determining the appropriate sentence, the Court will consider case law from other similar cases to achieve parity in sentencing. This is the principal that those convicted of similar crimes should be punished similarly. The Court will also consider aggravating and mitigating factors. The presence of aggravating factors will require a more severe sentence whereas the presence of mitigating factors will require a more lenient sentence. The Court must balance the aggravating and mitigating factors to arrive at an appropriate sentence.

During sentencing, both Crown counsel and defence counsel will make submissions on what they believe the appropriate sentence should be. Counsel may also provide the Court with caselaw to back up their position. Defence counsel can present as many mitigating factors as possible to the Court to justify a lower sentence.

Other Consequences of a Revenge Porn Conviction?

In addition to being criminally convicted of revenge porn and the sentence and criminal record that accompanies that, those convicted of revenge porn will also face other negative consequences. These consequences are likely to follow the offender well after their sentence has concluded. For example, those convicted of a revenge porn offence in Canada may be ordered to provide a sample of their DNA to be stored in the national repository.

In addition to criminal ancillary orders, those convicted in criminal court may be sued in civil court. A criminal conviction will make it easier for the plaintiff to successfully sue I civil court as the legal standard in criminal court is far higher than civil court. In fact, even where the accused is found not guilty, the complainant could still file a lawsuit and be successful due to the lower standard of proof in civil court.

Can Deepfake Images be Considered Intimate Images?

Deepfake intimate images typically involve someone superimposing someone’s face onto a nude body or otherwise altering an existing photo using AI technology. In some cases, these images will meet the definition of an intimate image for the purposes of the offence of distribution of intimate images without consent.

The important factor when determining whether a deepfake image will meet the definition of an intimate image is whether the image was created in a situation where the complainant had a reasonable expectation of privacy. So, for example, where an individual takes an existing nude photo of a person and then uses AI to alter the photo, making it into a deepfake, they may be guilty of an offence. In this scenario the accused may still be guilty of the offence because they used an existing nude photo of the individual without that individual’s consent.