Contact: Cole R. Southall and Anthony R. Foderaro; Fillmore Riley LLP (Manitoba, Canada)
Technology has revolutionized how we work, communicate and socialize, but it has also given predators and bullies an additional platform to torment their victims. Legislators and the courts have been scrambling to catch up with ever-advancing technology to address “revenge porn” and “cyberbullying." The following is a brief overview of how the Legislatures and the courts have considered these issues, in both the civil and criminal context.
Developments in Tort Law
Recently, the common law has significantly expanded the options available to victims of revenge porn. In a landmark case released in January of 2016—Doe 464533 v. D., 2016 ONSC 541—Justice David Stinson of the Ontario Superior Court awarded damages of $100,000, in addition to $41,708 in costs, to the ex-girlfriend of an Ontario man who posted an intimate video of her on a pornography website without her knowledge and consent. For the first time in Canada, a court applied the doctrines of breach of confidence, intentional infliction of mental distress and invasion of privacy to a case involving revenge porn. Justice Stinson explicitly recognized that non-consensual disclosure of intimate images constitutes a privacy tort. He wrote further that the defendant’s posting of the video was akin to sexual assault, noting: “[T]his case involves much more than an invasion of a right to informational privacy; as I have observed, in many ways [it] is analogous to a sexual assault.”
Along the same lines as the court’s decision in Doe, the Manitoba Legislature has taken steps to combat revenge porn and cyberbullying. First, Manitoba has recently enacted the Intimate Image Protection Act (the “IIPA”), which came into force in January of 2016. Like Doe, the IIPA explicitly recognizes the tort of “non-consensual distribution of intimate images,” allowing a victim to sue perpetrators in civil court if they share intimate images of the victim without his or her consent. The legislation allows a court to award damages to the victim, order the perpetrator to account to the victim for any profits made as a result of sharing the image, or issue an injunction. Manitoba is the first province in Canada to enact legislation of this kind. Secondly, in regards to cyberbullying, Private Members Bill 204—The Cyberbullying Prevention Act (the “CPA”)—has been introduced in the current session of The Legislature. A previous attempt at passing similar legislation via a Private Members Bill was introduced in 2013, with no success.
