Intimate images, as defined, will include altered images like 'deepfakes' and livestreamed images
New Brunswick’s government has introduced Bill 69, or the Intimate Images Unlawful Distribution Act, which seeks to establish civil liability for the actual or threatened distribution of intimate images without the consent of the individual depicted.
One claiming to be a victim can obtain relief through two ways: first, through applying, on an expedited basis, for a court order for the image to be destroyed and taken down from online platforms, and second, through gaining access, upon a finding of fault, to a wider range of damages, including general, special, aggravated and punitive damages.
The proposed legislation will broadly define an intimate image as including visual recordings wherein an individual is actually or is depicted as nude, nearly nude or engaging in sexual acts; altered images like “deepfakes;” and livestreamed images. It will also enable the revocation of consent and will establish a publication ban on the alleged victim’s identity when the court proceeding has started.
“This kind of violation can cause significant – and often irreversible – psychological, economic and reputational harm to the victim,” said Hugh Flemming, New Brunswick’s justice and public safety minister and attorney general, in the provincial government’s news release. “This legislation will send the important message that, regardless of motive or method, there is no justification for sharing a private intimate image of a person without their consent, and there will be consequences for doing so.”
According to the website of the Legislative Assembly of New Brunswick, the bill’s first reading was on Nov. 2 and its second reading was on Nov. 3.
The text of the first reading bill provides that a tort is committed when someone actually distributes or threatens to distribute an intimate image in relation to which a person has a reasonable expectation of privacy. This tort is actionable even without proof of damage.
In an application for relief under s. 5 or in an action claiming relief under s. 6, the respondent or the defendant has the burden to prove that the applicant or the plaintiff had no reasonable expectation of privacy at the time of the visual recording’s making and, if the recording has been distributed, at the time of its distribution.
An internet intermediary is immune to applications or actions under the proposed legislation if it has adopted reasonable steps to deal with the unlawful distribution of intimate images in the use of its services, but the court is authorized under ss. 5(2) or ss. 6(2) to make an order against an Internet intermediary or another person.