On January 29, 2024, BC’s Intimate Images Protection Act [SBC 2023] c. 11 (“IIPA”), and the accompanying Intimate Images Protection Regulation, came into force. The IIPA is designed to protect individuals whose intimate images have been distributed without their consent (Non-Consensual Distribution of Intimate Images – “NCDII”), often in the following scenarios:
“Revenge Porn”: where, initially consensually taken or obtained, images are distributed by a scorned lover following the end of the relationship; or
“Sextortion”: where illegally obtained images are threatened to be posted, unless the person in the pictures does something to benefit the distributer (usually a ransom payment in cryptocurrency)
The IIPA defines “intimate” to include an image, video or livestream that shows or depicts a person(’s):
Nude or nearly nude; or
Engaging in a sexual act; or
Genital organs (penis and/or vagina), anal region, or breasts.
An intimate image does not have to show the person’s face, or even be identifiable as the person. Intimate images can be real, fake, or altered. This includes digitally altered images (i.e. photoshop), digitally altered videos (i.e. deep-fakes), and AI generated material. Examples of intimate images include:
Images taken in a sexual context (i.e. a selfie or a sex tape); or
Images taken of sexual activity, but not nude or nearly nude; or
Images taken in a non-sexual context (i.e. in a bathroom).
The IIPA stipulates that individuals are entitled to revoke their consent to the distribution of an intimate image at any time. The IIPA further states that an NCDII is actionable without proof of damage.
I am a Complainant, What are My Options?
NCDII is already an offence under the Criminal Code of Canada, but existing criminal and civil legal options have traditionally fallen short of the immediate goals of victims of NCDII - removal of the images as soon as possible. The IIPA provides a streamlined, online and confidential process to create enforceable orders declaring an NCDII unlawful. If the distribution or threat to distribute happened on or after March 6, 2023, you can apply, without notice, for a Civil Resolution Tribunal (“CRT”) claim under the IIPA.
The CRT is a fast and cost-effective legal avenue that cases of smaller amounts can use as an alternative to the slower and often expensive Provincial Court and Supreme Court options. However, CRT cases still rely on arguments based on provided evidence.
The following remedies are available through the CRT:
Intimate Image Protection Order: Also known as a "take-down" order and meant to make someone delete the image or stop them from distributing or threatening to distribute it, including:
deletion or destruction of all copies of intimate images in a person’s possession or control;
refraining from distributing the intimate image; and
making reasonable efforts to prevent the intimate images from being accessible to others, including by
having the intimate image de-indexed from any search engine; and
having the intimate image removed from any platform operated by an internet intermediary and from any other electronic form of application, software, database and communication method.
Intimate Image(s) Damages Claim: an order to pay damages, including compensatory, aggravated and punitive damages and any prescribed damages, in accordance with any regulations.
The CRT is limited to $5,000 for this type of claim. More can be claimed via the Provincial Court (up to $35,000) or BC Supreme Court (over $35,000).
CRT orders will not include your name and may be subject to publication bans altogether in certain circumstances.
The Party I Got an Order Against Isn’t Complying. Now What?
You can go back to the CRT and make them aware of the situation, through an application. Pa
rties that don’t comply with CRT orders are subjected to administrative fines. The fine levied differs as follows:
Individuals: up to $500 per day, to a maximum of $10,000; and
Internet Intermediaries/Organizations: up to $5,000 per day, to a maximum of $100,000.
Administrative penalties differ from damages, in that they are payable to the BC government, while damages are payable to the party that won the case.
You can also apply in the Supreme Court for injunctive relief, preventing the party from contravening or continuing to contravene the CRT order. This application can be made without notice.
I am a Company What are My Obligations?
As outlined above, entities are exposed to financial consequences by:
monetary damages arising out of a CRT order; and
administrative penalties for not complying with a CRT order (whether or not the order included monetary damages).
The corporate parties of most concern to the IIPA are Internet Intermediaries, which are defined as an organization that hosts or indexes third party content through an online platform. The IIPA limits liability of internet intermediaries when they have taken reasonable steps to address the unlawful distribution of intimate images in the use of its services. “Reasonable Steps” are not defined in the IIPA, and the tribunal is not bound by its previous decisions, so what constitutes “reasonable steps” will likely be determined on a case-by-case basis.
Internet Intermediaries should ensure they create and implement procedures and systems to make sure they are engaging in what the CRT would consider “reasonable steps”, and to expeditiously comply with any CRT orders. While the CRT will likely be the most common venue for intimate image matters, the Provincial Court and Supreme Court is still available to a complainant, which may result in very high monetary damages.
Samuel Osei Law Corporation can assist in developing and implementing policies and systems to ensure your company remains in full compliance with the IIPA, as well as providing CRT or court representation if issues do arise under the new law. Feel free to contact us at firstname.lastname@example.org or 778-680-6087, if you need any help regarding the Intimate Images Protection Act.