Family Law and Revenge Porn: What To Do If You Are A Victim

Imagine you have been in an intimate and trusting relationship and then find that your partner has made private pictures or videos of you publicly available – what do you do if you are a victim of revenge porn? If you are a victim of revenge porn, is there a way to stop it or seek compensation? How might being revenge porn, harassment, or cyberbullying by an ex-partner impact family law matters?

In recent years, technology has enabled exes and bullies to victimize significant others by releasing nude photos or intimate videos without consent. “Revenge porn” is where a person publishes explicit photographs or videos of someone else without their consent, on the Internet, often through social media. Devastating harm can result from these acts, ranging from suicides to career-ending consequences when someone is victimized. Society has been scrambling to catch up to this problem and the law in Canada is beginning to respond to protect victims.

Revenge porn: What to do if you are a victim

If you are a victim of revenge porn, there are criminal and civil remedies:

• In 2014 the Parliament of Canada amended the Criminal Code to include a new offence of “publication of an intimate image without consent” (see s. 162.1). Under this new provision, anyone who publishes an intimate image of a person without that person’s consent is guilty of an offence and can be sentenced to up to five years in prison.

• There has been at least one high-profile case in BC involving criminal sanctions for revenge porn in the context of a family law dispute. In 2017 a Vancouver man was charged with criminal harassment under 264 of the Criminal Code for allegedly maintaining a “revenge website” against his former wife during a bitter custody battle.

• In the civil context, the Ontario courts recently recognized a new cause of action – the tort of “public disclosure of private facts” – in a case where an ex-boyfriend posted an intimate video of his former girlfriend on a pornography website without her knowledge or consent (Doe 464533 v. N.D., 2016 ONSC 541). In addition to establishing the cause of action for public disclosure of private facts, the revenge porn victim also established claims for breach of confidence and intentional infliction of mental distress. As the Doe case represents a significant alteration of the legal landscape, it is discussed in more detail below.

In addition to civil and criminal consequences for those who engage in revenge porn, such conduct can also have a detrimental impact on family law matters. For example, revenge porn can negatively impact child custody and access – it is no stretch to imagine that posting intimate photographs of a former spouse could irreparably hinder the willingness to cooperate, which could make joint custody unworkable (to say nothing of the fact that such content could have a direct impact on the children, as the photos or videos may be seen by the children or their friends).

Civil claim for revenge porn: What to do if you are a victim

The plaintiff and defendant in Doe 464533 v. N.D. had been in an intimate and trusting relationship over a lengthy period. They formally dated in high school and were still close in the fall of 2011 when the defendant began asking the plaintiff to make a sexually explicit video of herself to send to him. For some time, she refused, but the defendant asked her repeatedly. She ultimately recorded an intimate video of herself in November 2011. Before she sent it to the defendant she texted him, telling him she was still unsure. He convinced her to relent, and reassured her that no one else would see the video. Despite her misgivings, due to pressure from the defendant, she “caved in” and sent the video to him. In early December 2011, the plaintiff learned that the defendant had posted the video to a pornography website under the “user submissions” section on the same day she had sent it to him. He had also been showing the video to people in their social circle.

The 18-year-old plaintiff was devastated when she learned of the defendant’s actions. She contacted the defendant’s mother and the video was removed from the website. The video was available online for approximately three weeks before it was “removed” and there was no way to know how many times it was viewed or downloaded or if and how many times it may have been copied onto other media storage devices (where it may remain) or recirculated.

The consequences for the plaintiff arising from the defendant’s conduct were significant and long-lasting. The plaintiff was devastated, distraught and humiliated by the defendant’s actions. She experienced serious depression and had panic attacks. Four years after the incident, despite extensive counselling, she remained emotionally fragile. She worried about the potential for additional gossip, humiliation, and emotional distress and was very concerned about the possibility that the video may someday resurface and have an adverse impact on her employment, her career, or her future relationships.

In her civil claim, she sought compensatory and punitive damages, with a permanent injunction enjoining the defendant from any further related conduct. The defendant did not serve a statement of defence and was noted in default. The plaintiff brought a successful motion for default judgment. In reasons for decision dated January 21, 2016, Stinson J. held that the defendant was liable for the torts of breach of confidence, intentional infliction of mental distress, and invasion of privacy. The defendant was ordered to pay general damages of $50,000, aggravated damages of $25,000, punitive damages of $25,000, and costs on a full indemnity basis. In assessing damages, Stinson J. noted that the case involved much more than an invasion of a right to informational privacy; in many ways it was analogous to a sexual assault (para. 58). Stinson J. also issued a mandatory injunction that the defendant destroy all intimate images or recordings of the plaintiff in his possession, power, or control.

The bottom line on redress for revenge porn: What to do if you are a victim

If you are the victim of revenge porn, there are criminal and civil remedies available to seek recourse. Canadian law now recognizes that to permit an individual who was confidentially entrusted with intimate photographs or videos to intentionally reveal them via the Internet without legal redress would leave a gap in available legal remedies.