On January 29, 2024, BC's Intimate Images Protection Act ("Act"), and the accompanying Intimate Images Protection Regulation ("Regulation"), will come into force. The Act provides increased recourse for individuals who are the victims of "revenge porn", where intimate images have been distributed without their consent. The Act creates a parallel system of civil liability and recourse for actions which are already an offence under Canada's Criminal Code, and an expedited process to have intimate images taken down, deleted, or deindexed from search results.

An "intimate image" is defined to include a visual recording or representation of an individual (whether or not they are identifiable) in which they are, or are depicted as being, (i) engaged in a sexual act; (ii) nude or nearly nude; or (iii) exposing breasts, genital organs, or anal regions. An individual must have had a reasonable expectation of privacy at the time of capture or distribution of the intimate image. The definition is sufficiently broad to include still images, videos, live-streams, including digitally altered versions.

Under the Act, an individual commits an unlawful act, actionable without proof of damage, if they distribute or threaten to distribute an individual's intimate image without consent. It also clearly sets out that individuals are entitled to revoke their consent to the distribution of an intimate image at any time.

How Can Individuals Seek Relief?

Where intimate images have been or are threatened to be distributed without consent, an individual may seek relief under the Act before the Civil Resolution Tribunal ("CRT"). The CRT is a online tribunal meant to provide a simpler, more affordable way for people to access justice.

Amongst other things the CRT is empowered under the Act to:

  • make expedited protection orders requiring the deletion or destruction of all copies of intimate images in a person's control;
  • order a person to make every reasonable effort to remove intimate images from online platforms and de-indexed from search results;
  • order internet intermediaries or other organization to remove images from online platforms and deindex them from any search engines; and
  • order compensatory, aggravated, and punitive damages in accordance with the Regulation and issue administrative monetary penalties.

In the case of an individual who fails to comply with an order made under the Act, the CRT can issue a penalty of up to C$500 per day, to a maximum to C$10,000. For internet intermediaries or other persons or organizations the penalties are up to C$5,000 per day, to a maximum of C$100,000.

Implications for Internet Intermediaries

Under the Act, an internet intermediary is defined as an organization that hosts or indexes third party content through an online platform. As outlined above, internet intermediaries may be subject to orders to delete and destroy intimate images, and to de-index the image from search results. Failure to comply with such orders can trigger administrative monetary penalties. In anticipation of the coming into force of the legislation, BC's Attorney General issued a letter to technology companies, including many high profile social media organizations, advising them of the Act and their compliance obligations.

Notably, the Act limits the liability of internet intermediaries in circumstances where they have taken reasonable steps to address the unlawful distribution of intimate images in the use of its services. This highlights the need for internet intermediaries to develop internal operations and systems to ensure they are making such "reasonable steps".

In anticipation of the coming into force of the Act, internet intermediaries should take steps to review their internal operations and related policies to ensure they are positioned to efficiently identify and remove intimate images when so ordered.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.