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Publication of Intimate Images Without Consent

s. 162.1 of the Criminal Code prohibits the publication of intimate images without consent. This is a relatively recent offence in the Code that came into force on March 9, 2015. Prior to this, similar conduct would be charged either as Criminal Harassment or Distribution of Child Pornography if the complainant depicted in the image(s) was under 16.

s. 162.1 is a response to changing technology, including the increasing use of smartphones to take and send intimate images, and the easy availability of sites where such images may be widely circulated.

The offence of distributing intimate images is sometimes colloquially referred to as “revengen porn” and falls under the broader term of “cyberbullying”.

As with most criminal offences, the Crown does not need to prove motive to prove the offence (i.e. there is no need to prove a revenge motive).

Note that “intent” and “motive” are distinct concepts in criminal law. “Motive” refers to the reason a person did something, whereas “intent” simply refers to whether or not a person willed their actions.

The offence is worded as follows:

Publication, etc., of an intimate image without consent

162.1 (1) Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty

The elements of the offence, aside from identity, date, and jurisdiction, are as follows:

1. The accused published, distributed, transmitted, sold, made available, or advertised;
2. The thing published, distributed, etc. is an intimate image;
3. The person depicted in the intimate image did not consent to the publishing, distribution, etc. of it;
4. The accused did the publishing, distribution, etc. knowingly;
5. The accused knew, was reckless, or was willfully blind, about the person depicted in the image not consenting to it being published, etc.

Note that the Crown must prove both knowledge that the accused did the prohibited act and that the accused knew the person depicted in the image did not consent to the prohibited act.

A statutory defence exists to a s. 162.1(1) charge if the conduct serves the public good and goes no further than necessary to serve the public good.

Publishing intimate images is a serious offence which can attract sentences of several months jail.

You can find some of the firm's case results for publishing intimate images without consent HERE.

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