OTTAWA — As the federal government launches its latest attack on cyberbullying — a public awareness campaign dubbed Stop Hating Online — questions remain about what activities could land you behind bars if and when the centrepiece of its crackdown, a proposed new law on sharing racy photos, takes effect.
Postmedia News spoke on background with a Justice Department lawyer about the bill, which would make it a criminal offence to distribute sexually explicit images without a person’s consent.
Based on that conversation, here are some scenarios worth considering:
Remember those topless photos of Kate Middleton sunbathing? If that happened in Canada, could those responsible be charged under this new law?
Yes. The photos could be considered intimate images as they were taken at a secluded estate thought to be totally private.
I can’t believe those two were making out like that in full view at a party. Can I take a shot on my mobile and post it to Facebook?
A court may find the couple had an expectation of privacy even if they weren’t completely alone. And even if you don’t know the people engaged in said public display of affection, your proximity to the action could land you in hot water if you share it without permission.
It’s a nude public beach! Snap: large topless woman. Snap: hottie playing volleyball in the buff! Free-for-all right?
It’ll be up to a judge to decide if an expectation of privacy exists even though it’s a nude beach. This expert isn’t sure it would meet the test under the new law but suggests existing voyeurism laws could. And if you took that shot of the large lady to poke fun online, it could be a mitigating factor at sentencing but the purpose of the law is to protect one’s privacy interest in their own nudity and thus does not require proof of malicious intent.
What if I didn’t take the photo but merely reposted it?
You may be in trouble if you know the person depicted. For instance, if it’s an upstanding classmate, your actions might be considered reckless as it may be clear that person didn’t give their consent. If you’re sharing a racy photo of an actress or stranger pulled from a website, you can’t know that person did not consent.
What if you photoshopped somebody’s head onto a nude body?
The policy is there to protect a person’s privacy and if the head is tacked onto a Hollywood starlet’s nude figure, there’s no real privacy interest. That said, it’s up to the judge and the circumstances of the case might dictate otherwise.
Sexy selfie shared by vindictive ex-boyfriend?
Yup, that’s a problem.
But what if I also posted that same sexy selfie to the hot or not website?
Sorry, you’ve lost your privacy interest, one of three key components to the definition of intimate image. The other two are that it depicts nudity or sexual activity, and that it was taken under circumstances in which there was an expectation of privacy like in your bedroom.
Janet Jackson wardrobe malfunction captured live?
Fair game.
Sex in a public place?
If it’s in a secluded place where those involved thought they had privacy, it could be a problem. If it’s the staircase of the Supreme Court of Canada – not so much.
An image of a homeless guy urinating in public?
Probably not likely to be charged under the new law.
I run a revenge porn website. Am I liable?
Aiding and abetting this type of activity isn’t a crime under this new law but other Criminal Code offences might apply.
Any jurisdictional limits to the law?
Canadian law does not extend beyond the border. Under the new law, judges will only be able to order intimate images be removed from Canadian servers. Flicker, YouTube, Facebook and Twitter, for instance, are not Canadian. The sites, however, may be willing to work with Canadian law enforcement.
Incidents will largely be complaint-driven and the complainant will have to show a substantial connection to Canada. For instance, even if the photo was taken in Mexico and posted to a U.S. website, charges may be laid if either the victim or the accused is Canadian. It could get complicated if Canadian authorities need to reach out to foreign counterparts for legal assistance with extradition or other issues.
The new intimate images law was tabled in November as part of Bill C-13, the Protecting Canadians from Online Crime Act, which also gives the courts the power to order images removed from the Internet and police new tools to investigate online crime. It is punishable by as many as five years in prison and applies to adults as well as young people who can now face child pornography charges for such activity. While existing criminal harassment charges might apply in some non-consensual distribution of intimate images cases, it requires a high degree of proof that the victim feared for their safety.
The bill was introduced following the high-profile suicides of Nova Scotia teen Rehtaeh Parsons, whose alleged rape was circulated over the Internet, and B.C. teen Amanda Todd who was exploited online.
Critics say the bill goes beyond cyberbullying and contains similar provisions to those in Bill C-30, the controversial Internet surveillance bill that was scrapped over privacy concerns. The government hopes the bill will become law before the summer.
The government’s commitment to combating cyberbullying goes beyond legislation. This week, Justice Minister Peter MacKay launched a television and online ad campaign to raise public awareness about cyberbullying and to inform teens and parents about what behaviour might be criminal.
Next month, the second phase of the campaign will focus on what youth can do to tackle cyberbullying before it goes too far.
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