Ask a Lawyer – “My intimate pictures were shared on the internet by my ex. Is there anything I can do?”

An intimate image is legally defined as “an image that depicts a person engaged in explicit sexual activity or that depicts a sexual organ. Furthermore, the image would have to be one where the person depicted had a reasonable expectation of privacy at the time of the recording and had not relinquished his or her privacy interest at the time of the offence.”

Sharing intimate images or videos of another person without their consent is a crime under the Criminal Code. As well, the Intimate Images Unlawful Distribution Act (IIUDA) recently came into force in New Brunswick, creating a statutory tort for the threatened or the actual distribution of intimate images.

This new Act allows individuals whose images were distributed to have more control over the expedited process of the removal of the images from distribution. This IIUDA allows the subject of the images the possibility to claim compensation for damages.

In section 2 of the IIUDA, the actionable tort is when a person “distributes or threatens to distribute an intimate image in relation to which a person has a reasonable expectation of privacy.” The individual can apply to the Court under sections 5 or 6 of the Act.

Section 5 allows the individual to proceed with the action, without requiring the applicant to prove that the respondent intentionally distributed the image, with an aim of causing harm.  

Under section 5, to issue an order, the court must be satisfied that (i) the image is an intimate image of the applicant; (ii) the applicant had a reasonable expectation of privacy in relation to the intimate image; and (iii) the respondent distributed or threatened to distribute the image. Under section 6, the Act creates a more “fault-based tort”, where the applicant can seek further damages, including compensatory, aggravated, and punitive damages, which would not be available in the expedited process.