Third

Session, 48th General Assembly

Elizabeth II, 2018

BILL 12

ACT RESPECTING THE PROTECTION OF INTIMATE IMAGES

Received and Read the First Time .................................................................................................

Second Reading .................................................................................................................................

Committee ..........................................................................................................................................

Third Reading .....................................................................................................................................

Royal Assent ......................................................................................................................................

HONOURABLE

ANDREW PARSONS, Q.C.

Minister of Justice and Public Safety and Attorney

General

Ordered

to be printed by the Honourable House of Assembly

EXPLANATORY NOTES

This Bill would enact the Intimate Images Protection Act .

The Bill would

allow a person whose intimate

image was distributed without consent to commence an action against the person

who distributed the intimate image; and

create civil remedies to deter,

prevent and respond to the harms of the non-consensual distribution of intimate

images.

A BILL

AN ACT RESPECTING THE PROTECTION OF INTIMATE

IMAGES

Analysis

Short title

Definitions

Interpretation

Distribution of intimate image without

consent

Action without proof

Expectation of privacy

Reverse onus

Defence

Remedies

Publication ban

Other rights not affected

Be it enacted by the Lieutenant-Governor and

House of Assembly in Legislative Session convened, as follows:

Short title

1. This

Act may be cited as the Intimate Images

Protection Act .

Definitions

2. In

this Act

(a) "court" means the Supreme Court of

Newfoundland and Labrador ; and

(b) "intimate image" means a visual

recording of a person made by any means, including a photograph, film or video

recording

(

i) in which the person depicted in the image

(

A) is nude or is exposing his or her genital

organs or anal region or her breasts, or

(

B) is engaged in explicit sexual activity,

(ii) that was recorded in circumstances that gave

rise to a reasonable expectation of privacy with respect to the image, and

(iii) where the image has been distributed, in which

the person depicted in the image retained a reasonable expectation of privacy

at the time it was distributed.

Interpretation

3. For

the purposes of this Act, a person distributes an intimate image where that

person publishes, transmits, sells, advertises or otherwise makes the intimate image

available to a person other than the person depicted in the intimate image.

Distribution of

intimate image without consent

(1) It is a tort for a person to distribute an intimate image of another person

without the other person's consent.

(2) A person who distributes an intimate image

commits the tort referred to in subsection (1) against the person depicted in

the intimate image where the person

(

a) knows that the person depicted in the intimate

image did not consent to the distribution; or

(

b) is reckless as to whether or not the person

depicted in the intimate image consented to the distribution.

Action without

proof

5. An

action for the non-consensual distribution of an intimate image may be commenced

without proof of damage.

Expectation of

privacy

6. In

an action for the non-consensual distribution of an intimate image, the person

depicted in the intimate image does not lose the expectation of privacy with respect

to the intimate image where

(

a) the person

(

i) consented to another person recording the

intimate image, or

(ii) provided the intimate image to another person;

and

(

b) that other person knew or ought reasonably to

have known that the person depicted in the intimate image did not consent to

the further distribution of the intimate image.

Reverse onus

7. Where

an action for the non-consensual distribution of an intimate image is

commenced,

(

a) it shall be presumed that the intimate image

was distributed without the consent of the person depicted in the intimate

image; and

(

b) the defendant shall establish that he or she

had reasonable grounds to believe that he or she had ongoing consent for

distribution of that intimate image.

Defence

8. It

is a defence to an action for the non-consensual distribution of an intimate

image to show that the distribution of the intimate image is in the public

interest and does not extend beyond what is in the public interest.

Remedies

(1) In an action for the non-consensual distribution of an intimate image, the

court may

(

a) award damages to the plaintiff, including

general, special, aggravated and punitive damages;

(

b) order the defendant to account to the

plaintiff for any profits that have accrued to the defendant as a result of the

non-consensual distribution of the intimate image and make an order in favour

of the plaintiff with respect to the recovery of those profits from the

defendant;

(

c) issue an injunction on the terms and

conditions that the court determines appropriate in the circumstances; and

(

d) make any other order that the court considers

just and reasonable in the circumstances.

(2) In awarding damages in an action for the

non-consensual distribution of an intimate image, the court may disregard an

order made under paragraph (1)(

b) in respect of the non-consensual distribution

of the intimate image.

Publication ban

(1) Where an action for the non-consensual

distribution of an intimate image is commenced, a person shall not publish or

make public the names of the parties to the action or any information that may

identify the parties to the action until the court determines whether to issue

an order under subsection (2).

(2) The

court may make an order prohibiting the publication of the name of any party to

the action or any information that may identify a party to the action where it

considers the making of the order to be in the interest of justice.

(3) Notwithstanding

subsection (1), where a person involved in an action for the non-consensual

distribution of an intimate image is under the age of majority, a person shall

not publish or make public the name of that person or any information that may

identify that person.

(4) S ubsection

(3) continues to apply after the person reaches the age of majority.

(5) A person who contravenes subsection 10(1) or

(3) commits an offence.

Other rights not

affected

11. A

right of action under this Act is in addition to, and does not affect, any

other right of action or remedy available to a person under another Act.

Queen's Printer