In recent years, with the explosion of social media and different methods of file sharing, the misuse and mishandling of intimate images has become a hot topic.

Sharing Images Without Consent

It is illegal to share intimate images (where the individual is nude or semi-nude, or is engaged in explicit sexual activity and has a reasonable expectation of privacy) without the consent of the person in the picture.

Section 162.1 was added to the Criminal Code in the wake of disastrous cases, such as that of Rehtaeh Parsons* and the resulting debate about sexting, revenge porn, cyber-bullying, and related issues.

When individuals 18 or older each consent to exchange intimate images privately it is generally legal. However, consent is critical, not just to the original exchange but to any sharing that occurs afterward. It is also vital for individuals to understand that once an image is shared, even with consent, it is very easy to lose control over it once it is in someone else’s hands.

Child Pornography

In Canada it is an offence to possess, access, produce or distribute child pornography.

The Supreme Court of Canada, in R v Sharpe, outlined exceptions where recording and possessing such images may be permissible:

• the activity in the image/recording must be lawful
• only those who participated in or recorded the activity may possess the image/recording
• all parties must have consented to both the activity and the creation of the image/recording
• the image/recording must remain private

If all of the conditions (or “Sharpe factors”) are not met, those under the age 18 who engage in sexting could be found guilty of child-pornography, an extremely serious charge. However, since the Criminal Code now includes an offence of sharing intimate images without consent, instances of sexting between teenagers that cross the line are arguably more suited to a charge under this section of the Criminal Code.

In the fall of 2016 and following the addition of Section 162.1 to the Criminal Code, six teenage boys were in youth court in Bridgewater, Nova Scotia to face charges in relation to sharing numerous intimate images of girls under the age of 18. In most instances, the girls initially sent intimate images of themselves to their boyfriends. The boys, however, went on to share the images with one another through the file-sharing service Dropbox. According to police, this sharing went “beyond what the young women had agreed to.”

The Bridgewater teens initially faced charges of both unlawfully sharing private images and child pornography. The case was among the first to use the new law to address the sharing of intimate images without the individual’s consent. After numerous adjournments, due to the complexity of the electronic evidence and the number of individuals involved, the trial was scheduled for fall 2017. However, prior to trial the teens pled guilty to sharing intimate images and the child pornography charges were dropped. Speaking on behalf of the Crown, the prosecutor noted…

“ The charge of intimate images was the one that best fit the circumstances of this case, so with that concession on the part of the defence we were satisfied with those guilty pleas.”

At sentencing, the judge noted that the experience of the victims and their families had been “complete hell” but also indicated that he was encouraged that those charged had expressed remorse and accepted responsibility for their actions. The teens received conditional discharges and were each required to perform 50 hours of community service, attend counselling, not access or store pornography, and not have contact with the victims or their families. If they complied with the conditions their convictions were to have been erased after three years.