BC Makes First Moves Against ‘Revenge Porn’

British Columbia is exploring ways to better support victims of “revenge porn” and fill gaps left by federal legislation as reports of the crime rise.

The province’s new Gender Equity Office announced last week that it’s leading a consultation process to develop laws on revenge porn, catching up to several other provinces with frameworks already in place.

“Without consent, circulating or threatening to distribute an intimate image is a form of sexual violence with traumatic and lasting impacts,” Grace Lore, parliamentary secretary for gender equity, said in a statement.

“We believe a comprehensive B.C. approach can make a real difference for people to achieve results faster and get better access to justice.”

Advocates and experts across Canada have long argued for provincial measures to ensure justice for victims of revenge porn.

Legally known as the non-consensual distribution of intimate images, revenge porn is an issue that sits at the intersection of gender-based violence and privacy, with advocates taking various stances on how it should be approached depending on their background.

It’s also an issue that’s becoming increasingly concerning and harder to respond to with the rise of new and emerging technologies that make images harder to find and erase.

Even the term “revenge porn” is out of date, says Chandell Gosse, whose PhD focused on the barriers that women face while seeking support after experiencing online violence.

“Revenge” implies that the perpetrator is seeking retribution for some supposed wrongdoing of the victim, and “porn” unnecessarily sexualizes a crime, she said. Some advocates prefer the legal phrasing of non-consensual distribution of intimate images or use newer definitions like “breach of sexual privacy.”

The urgency to address revenge porn has only grown during the pandemic.

According to Cybertip, a national tipline for reporting the online sexual exploitation of children, reported incidents of non-consensual distribution of intimate images increased by 58 per cent last year — a 94-per-cent increase in youth reporting and a 44-per-cent increase in adults reporting.

Gosse wants people to recognize that there is no distinction between the “virtual world” and the “real world” when we look at non-consensual distribution of intimate images.

“We socialize online, we date online, we bank online, our politics, our culture, education, work is online, everything we do is online. Harm that we experience is the same, whether it appears online or offline.”

Any response should match that mentality, with an “ecosystem of support” in place for victims, she says. But so far, legislation hasn’t expanded to meet the challenge.

The available options for justice once photos circulate on the internet “are so limited” people just give up, said Raji Mangat, executive director of West Coast Legal Education and Action Fund. “And I think that sense of powerlessness is very damaging.”

Provincial legislation could help fill that gap. For example, it may create a new and efficient way for people to have posted images taken down, something experts say is key to combating the trauma of having intimate images shared and posted online.

“The most important thing is having a quick avenue for the people who are victims of this to take steps to get it taken down. I just can’t stress that enough,” said Meg Gaily, a representative of the B.C. delegation to the Uniform Law Conference of Canada with legal expertise on the issue. The conference works with lawyers and scholars to develop comprehensive acts on complex issues when there is value in some uniformity across jurisdictions.

Securing financial compensation from perpetrators is another avenue that civil legislation could create, Gaily said.

Canada only amended its Criminal Code to include non-consensual distribution of intimate images in 2015 with the passing of Bill C-13. Before then, people under 18 were covered under child pornography legislation, and adults had a patchwork of laws depending on their situation, such as criminal harassment, intimidation and extortion.

Bill C-13 still gives victims very few options, Mangat said. It’s either a slow and daunting criminal justice process that may not work out in their favour, or a “game of whack-a-mole” in which they try to get intimate images taken down themselves.

She says that the victims her organization has heard from describe the process as “devastating” to their lives, professionally and socially.

Manitoba, Saskatchewan, Alberta, Nova Scotia and Newfoundland and Labrador have all already incorporated non-consensual distribution of intimate images into their provincial legislation.

Nova Scotia was the first province to begin action on the issue in 2013, finally passing a new law on cyberbullying in 2017 that can force perpetrators to take down intimate images posted online.

In 2018, law professors Hilary Young and Emily Laidlaw proposed a federal framework of best practices that all provinces and territories could draw on at the Uniform Law Conference of Canada.

A draft non-consensual distribution of intimate images act was presented at the conference’s August annual meeting. According to B.C.’s Gender Equity Office, the province was part of the working group that drafted the act and will now use it to develop its own legislation.

Kristen Thomasen, a professor at the University of British Columbia's Peter A. Allard School of Law whose work focuses on law and robotics, says that while approaching non-consensual distribution of intimate images from a privacy standpoint isn’t perfect, it provides an alternative to the criminal justice system.

She also hopes that B.C. will make any potential law broad enough to anticipate changes in the way technology is used to perpetuate gender violence over the next five or more years, such as “deep fakes,” which are fake images and videos made with artificial intelligence.

Gosse says a marked cultural and educational shift is also needed to address the issue.

Any educational or prevention work needs to acknowledge that sharing intimate images is now a common form of sexual expression, she says. “It’s unrealistic to ask youth to not engage in this behaviour consensually. Because they’re going to do it anyway.”

“We could also be even investing much more in how we support survivors of gender-based violence across the board,” said Mangat, “whether that’s happening online, or it’s happening in their homes, or their workplaces. We should be treating this as a health problem, as well as a justice problem.”

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