British Columbia’s Intimate Images Protection Act (Act) and Intimate Images Protection Regulation (Regulation) will come into force on January 29, 2024. The Act and Regulation provide a civil remedy for those whose intimate images have been distributed without consent or threatened with distribution. Distributing an intimate image without consent is a criminal offence under the Criminal Code. The Act provides individuals with a cause of action for civil damages and an expedited process to have their intimate images deleted, taken down or de-indexed. The Act affects organizations that host or index third-party content through an online platform, defined as internet intermediaries. Since this encompasses most social media platforms, video hosting platforms, websites and search engines, all internet intermediaries should be aware of the new Act and Regulation.
Intimate images are defined broadly in the Act to include any image, video recording or live transmission depicting an individual who is nude or nearly nude, engaging in a sexual act or exposing private areas. The Act creates a reasonable expectation of privacy in intimate images, even if the individual is not identifiable or the image has been altered in any way. The reasonable expectation of privacy remains even if: (i) an individual distributed the image themselves, (ii) the individual consented to distribution by another person (consent may be withdrawn at any time), or (ii) the individual has died.
As of January 29, 2024, individuals will be able to apply for two types of relief: (i) a protection order (to delete, remove or de-index an intimate image) or (ii) damages, including punitive damages. The action can be brought before British Columbia’s Supreme Court, Provincial Court or Civil Resolution Tribunal (CRT), an online tribunal that promotes access to justice and resolves civil disputes in writing (for example, small claims’ dispute of up to C$5,000). The claimant will have to prove that the image is an intimate image depicting them, and that they faced a threat of, or distribution of, the intimate image without their consent. The claimant does not need to prove harm.
Protection Orders and Internet Intermediaries
The claimant can bring an application for a protection order without notice and without naming a respondent or an internet intermediary. In deciding whether to grant the order, the decision maker must consider: (i) the potential for the order to mitigate harm, (ii) the personal circumstances of the individual depicted in the intimate image, and (iii) the manner in which the individual is depicted in the intimate image. If a protection order is warranted, the decision maker has broad power to make orders against any unnamed respondents and internet intermediaries, including ordering the internet intermediary to (i) remove an intimate image from any operating platform, electronic application, software, database or communication method, (ii) delete or destroy an intimate image, and (iii) de-index an intimate image from any search engine. The British Columbia Courts and CRT can also compel, from any person, any information necessary to further the removal, deletion or de-indexing of the intimate image. Although the Act provides that the identity of the claimant must be subject to a publication ban, these procedures do not seem to apply to internet intermediaries. Furthermore, in accordance with the open courts principle, protection orders will likely be published online and may name internet intermediaries where they are respondents or subject to a removal order.
The Act states that an internet intermediary will not be found liable for damages, so long as it has taken reasonable steps to address the unlawful distribution of intimate images in the use of its services. Neither the Act nor the Regulation provides further guidance regarding what measures will be considered reasonable. However, if an internet intermediary fails to comply with a protection order, it could be subject to an administrative penalty of C$5,000 for each day of non-compliance, up to a maximum of C$100,000. Only the CRT has the power to levy an administrative penalty, and before doing so, it must provide the internet intermediary with an opportunity to be heard. The CRT has published a draft of the Intimate Image Protection Order Rules for consultation, providing a mechanism for an internet intermediary to ask the CRT to cancel a protection order within seven days of receipt or to cancel an administrative penalty within 28 days of receipt.
Since applications for protection orders can be brought without notice, internet intermediaries should be aware that they may receive one from either a British Columbia Court or the CRT. Internet intermediaries may also receive requests to remove intimate images from their platform from respondents named in an order. It is unclear how long internet intermediaries will have to comply with a protection order, so they should prepare to respond rapidly. As a precaution, internet intermediaries may want to ensure they have set up reasonable steps to address the unlawful distribution of intimate images on their platform.
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