Cyberbullying & Revenge Porn: Why You Need To Act Fast

Online harassment: a growing problem……

Cyber-bullying and revenge porn is worrisome trend. Statistics Canada reports that one in six internet users see content that promotes hate or violence; and that seven per cent of users experience it personally. Of that seven per cent, young girls face the greatest risk. And other minority groups are close behind: ethnic or religious minorities, the LGBTQ community and the physically-challenged are also much more likely to experience harassment online.

In response, the Canadian government amended the Criminal Code: the new Section 162.1 makes it a criminal offence to publish an intimate image without consent.

However, this common-sense amendment still presents hurdles for victims.  The fact that criminal offences must be proven “beyond a reasonable doubt” makes criminal prosecutions for revenge porn relatively few and far between.

A civil law suit is often the most productive route

The civil courts – where it’s about monetary damages, not jail time – are often a better route, since you only need to prove that the perpetrator did the publishing on a “balance of probabilities”, i.e. a 51% likelihood.

And the civil law around revenge porn grows more robust every day.  In Manitoba, the new Intimate Image Protection Act makes it easier for victims to sue in in civil courts by: first, legislating a presumptive right to privacy of intimate images; second, strengthening the authorities’ ability to assist victims; and third making clear the victim does not need to show specific monetary loss to have a viable claim. This act may turn out to be a bellwether for revenge porn law across the nation.

In Ontario, the law is still developing: the recent case of Jane Doe 464533 v. ND made clear that the perpetrators of revenge porn should pay their victims in monetary damages.  However, an appeals court was concerned by certain procedural elements of the trial, and therefore decided to have the matter heard again.

Still, the upshot is that Jane Doe 464533 v. N.D. is good law in Ontario, and provides a route for victims to seek damages from their tormentors.  In my opinion, any fine-tuning by the courts will address how much victims should be paid, and what kind of evidence is required to prove those damages. It may well be that the Ontario courts will follow Manitoba’s lead by creating law that creates lower thresholds to obtain monetary damages.

Dealing with revenge porn: keep two things in mind – speed & evidence.

It is no-doubt anguishing when private images are posted by someone who was in a trusted relationship.  But as with any case, evidence is key.   

Difficult as it is, the first step for any victim is to collect as much evidence as possible: screenshots, emails, shares and retweets are all essential proof to either ground a legal claim against the perpetrator, or, to have illicit images removed.

Second, it is a good idea to keep detailed notes on the event i.e. who told you about the images? How did they find out? How many people know?

By moving quickly, victims of online harassment maximize not only their chances of having the unlawful material taken down, but also the prospects of a favourable outcome in court.

 

 Mark Donald practices in the area of media law, including defamation, invasion of privacy and harassment claims. If you have a legal dispute, you are most welcome to schedule a consultation with Mark. He can be reached at ph: 416-681-9615, or, mark@markdonaldlaw.com

Note: This article is a general survey of the law and expresses Mr. Donald’s personal views on the subject matter discussed. It is not a substitute for, nor does it constitute legal advice. Viewing this article does not create a lawyer-client relationship.