A cybersecurity and privacy lawyer with a Canadian-based law firm says anyone can become a victim when it comes to sharing intimate photos without permission (NCDII).
Claire Feltrin is a lawyer with Borden Ladner Gervais LLP and her comments come as an
extensive cyber crime investigation in Thunder Bay has led to 12 arrests and a total of 172 charges.
Of the 172 charges, 147 were for distribution of intimate images without consent.
“It’s important just to know for individuals out there who may be victimized that you’re not alone, it’s not your fault and anyone can become the victim of this kind of harassment, even adults, and it’s not your fault,” said Feltrin. “It’s so important to tell a trusted parent or friend and know that there are options, both legally and practically.”
Progress made in beefing up laws
The provincial courts have seen an uptick in this type of crime in recent years prompting the need for new laws.
“This is a long time coming, but fortunately Canada has made a lot of progress in developing and statutory provisions to address this type of conduct,” explained Feltrin. “From a legal perspective, there are both civil and criminal options for someone who finds themselves victimized by extortion or harassment or anything to do with intimate images.”
According to police, most of the images were taken via hacking and shared in an online chat forum.
The 12 men charged range in age from 28 to 38-years-old with one of the accused facing nearly 100 charges.
“From a civil perspective, in order to both address tech-facilitated violence like this and provide speedy and effective civil recourse for victims of digital distribution, several provinces have now introduced legislation specifically to deal with NCDII. That is including the creation of a statutory tort for this type of conduct, which does not require proof of damages by the victim.”
“Also, reverse onus that places the burden on defendants to prove that they had consent to distribute the intimate image in question.”
Victims can also seek financial compensation for damages and seek the prohibition of the distribution of images in cases where someone is threatening distribution.
Livestream recordings and deepfakes are also included under the statutes.
“Now from a criminal perspective in 2015, in Canada, saw the establishment of a new criminal offence to specifically address the publication of intimate images without consent. Prior to that, we really relied on the criminal code’s voyeurism provisions which sanctioned the surreptitious recording of another person, but they really didn’t cover those instances where non voyeuristic, sexualized recordings of individuals were distributed, so the recognition of that gap gave rise to this new provision, it’s Criminal Code section 162.1”
This provision provides that anyone who knowingly publishes, distributes, transmits, or otherwise makes available an intimate image of a person knowing that that person in the image did not provide consent to that conduct is guilty of an offence.
“It’s great that we do have provisions both in the criminal and civil context to address this kind of behavior, and part of that is, just the increasing use of technology by individuals to you know, take photos of themselves or for individuals to behave badly when it comes to distributing images without consent, and then also it’s a result of people becoming, I think more aware of how harmful this conduct is and so we’re seeing, you know, the law enforcement take it much more seriously.”
Conviction could mean jail time
Criminally there are no minimums for the offence but there is a maximum.
“If the offence is prosecuted by indictment, the maximum penalty is five years incarceration and if prosecuted by summary conviction, the maximum penalty is 2 years less a day jail or a $5000 fine.”
Those accused in Thunder Bay’s case all turned themselves in to city police.
“Beyond the law, there are many practical resources for getting intimate images taken down, for example from social media platforms as soon as possible, and that’s really the key for individuals who’ve been victimized in this way. For example, Facebook, Instagram, Twitter, all of these platforms have their own mechanisms for reporting these types of images, and you know, an expedited process for getting them taken down as soon as possible.”
Thunder Bay’s Cyber Unit started investigating in 2023 after a woman reported images were being shared without consent.
However, Feltrin cautions we cannot assume what types of images were shared.
“(NCDII is) the nonconsensual distribution of intimate images also colloquially known as revenge porn, and that occurs when someone shares an intimate image, usually an image of a person in the nude, or engaging in sexual activity without that person’s consent,” explained Feltrin. “Now, importantly, NCDII can take many forms, including not only the distribution of an image or video taken of an individual, but also threats to distribute the image, such as sextortion cases which are becoming unfortunately ever more common.”
“It can also include the sharing of images obtained by computer hackers, as well as voyeuristic images, also known as up-the-skirt photos recordings of sexual assaults and also deepfakes, which are images that have been digitally manipulated to make it appear as though a person is nude or engaging in sexual behavior, when in fact they are not.”
In Thunder Bay’s investigation, a total of 117 victims have been identified, including residents from across Canada and in three other countries.
It is also possible that other victims have yet to be identified.
Anyone who believes their intimate images may have been shared without their consent should contact police or Crime Stoppers.
Detective Constable Joel Manherz at (807) 684-1200 ext. 4115.
Tips can be submitted anonymously through Crime Stoppers at 1-800-222-8477.
