The authors were asked by the Uniform Law Conference of Canada to help create a model tort for the non-consensual distribution of intimate images (NCDII), sometimes known as revenge porn. Five Canadian provinces already have such torts, and they are relatively traditional actions for damages requiring the plaintiff to prove that the image is an identifiable image of them and fault (usually that the image was distributed by the defendant with knowledge – or recklessness – as to the absence of consent). The problem with such actions is that they are often not effective at getting victims of NCDII what they most want: quick, cheap and effective removal of an image, or an order prohibiting further distribution of an image. Injunctive relief is available, but the costs and timelines of litigation may make such orders expensive and relatively ineffective, as reputational harm will have been done before an order can be obtained. Our paper focuses on how to create a tort so as to maximize the possibility of quick, cheap and effective removal of NCDII from the internet. For example, we consider whether small claims court could achieve this through declaratory relief (intermediaries will often remove images when a court declares their publication unlawful, such that declaratory relief will sometimes be sufficient). Alternately, the rules of small claims courts could be changed to permit injunctive relief. We consider the merits of a simplified superior court action that provides only for injunctive and declaratory relief. Yet another possibility is a law, presumably federal, that simply requires intermediaries to remove or de-index intimate images on request of the person depicted in the image. We discuss the benefits and drawbacks of various proposals.
Young, Hilary and Laidlaw, Emily, Creating a Revenge Porn Tort for Canada (April 1, 2020). Supreme Court Law Review, 2020.