Chad Sullivan and Tiffany Primmer

Increasingly, employers are finding themselves faced with addressing the uncomfortable situation of an employee who has shared an intimate image of another employee. While not directly applicable to what an employer can or cannot do in these circumstances, new legislation has been passed in New Brunswick that employers may wish to make victims aware of.

On April 1, 2022 the Intimate Images Unlawful Distribution Act (“IIUDA”) received royal assent in New Brunswick; following other provinces who have made legislative changes aimed at combating the growing trend of “revenge porn.”¹

The IIUDA creates a new statutory tort for the actual or threatened distribution of intimate images to which a person has a reasonable expectation of privacy.

This effectively establishes civil liability for what is also a criminal code offence under section 162.1 of the Criminal Code of Canada, being the publishing or sharing of an intimate image without consent.

One of the goals of the IIUDA is to enable victims to exercise more control over the process by providing access to an expedited process for the removal of non-consensual intimate images from distribution, and the ability to claim compensation for damages suffered as a result.

The IIUDA begins, at section 2, by establishing a new actionable tort where a person “distributes or threatens to distribute an intimate image in relation to which a person has a reasonable expectation of privacy.” Significantly, the claimant need not prove any damages (as they would have to in an ordinary common law tort action).

Individuals can proceed with a fast-tracked process by making an application to court (under section 5). The court may order a number of remedies if it is satisfied that:

• the image is an intimate image of the applicant;
• the applicant had a reasonable expectation of privacy in relation to the intimate image; and
• the respondent distributed or threatened to distribute the intimate image.

The court may issue an order (under the section 5 – expedited process):

• declaring the distribution (or threatened distribution) of the intimate image to be unlawful;
• order the respondent to make all reasonable efforts to destroy the intimate image in their possession;
• have the intimate image removed from an internet intermediary platform and de-indexed from any search engine;
• award nominal damages; and
• provide any other order the court considers appropriate in the circumstances.

This relief (under the section 5) is available without requiring the applicant to prove the respondent distributed the image intentionally and with the aim of causing harm.

The IIUDA further creates a more traditional fault-based tort (under section 6), where individuals can seek further damages (i.e. compensatory, aggravated and punitive damages) not available in the expedited process.

Of course, all of this would be for nothing if victims were fearful of bringing an action in open court and risking further notoriety by providing another platform for distribution. To combat this, the IIUDA imposes an automatic publication ban where applicants must instead apply to have the publication ban removed, if so desired. This is in keeping with the remedial nature of the IIUDA to provide a meaningful avenue for victims to limit the amount of emotional, reputational, and potential financial harm caused by the non-consensual distribution of an intimate image.

The IIUDA is another example of how privacy law continues to evolve including by the creation of new privacy related torts. When the sharing of intimate images occurs within the workplace or otherwise spills over into the work environment, in addition to investigating and potentially taking disciplinary action against the perpetrator, oftentimes employers advise victims of their rights to pursue such matters through making a complaint to the police or commencing a civil action. The IIUDA is another potential option for redress that seeks to remove some of the delay and difficulty associated with bringing a traditional civil action.

This client update is provided for general information only and does not constitute legal advice. If you have any questions about the above, please contact a member of our Labour and Employment group.

Click here to subscribe to Stewart McKelvey Thought Leadership.

¹ Protecting Victims of Non-consensual Distribution of Intimate Images Act, RSA 2017, c P-26.9; Intimate Image Protection Act, CCSM c 187; Intimate Images and Cyber-protection Act, SNS 2017, c 7; Intimate Images Protection Act, RSPEI 1988, c I-9.1; Intimate Images Protection Act, RSNL 2018, c I-22. Saskatchewan has opted to amend its privacy and other related legislation to address these concerns, see: Government of Saskatchewan, “Province Introduces New Measures To Address Non-Consensual Sharing of Intimate Images”. Online here.