Tort aims to provide faster, less expensive procedures for injunctive relief
Two Canadian law professors from both sides of the country recently developed a sample law designed to strengthen remedies for those who have become victims of what is commonly known as “revenge porn.”
University of Calgary professor Emily Laidlaw and University of New Brunswick’s Hilary Young worked on a Uniform Law Conference of Canada project to tailor a tort that could help provide access to justice to plaintiffs “in ways that existing civil and criminal laws cannot.”
The ULCC works with lawyers and scholars to provide comprehensive acts that can be adopted by provincial governments when there is a desire to have uniformity in dealing with complex issues. Provinces can adopt ULCC acts entirely or supplement existing laws with certain aspects of ULCC acts.
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Non-consensual disclosure of intimate images (or “NCDII”), more commonly known as revenge porn, has been a reality long before the internet age, says Young. However, with the advent of social media, the ability for images and videos to quickly spread has made it critical for legislatures to enact laws to prevent it.
“The sense is that once an image is out there, it cannot be recalled or un-distributed,” the two write in a paper on their work on a proposed law. “Further, the law is slow, expensive and complex, making civil actions unattractive to those who just want to minimize the damage that NCDII has wrought.”
Young also says that both criminal and tort laws have always covered NCDII. In Nova Scotia, Saskatchewan, Alberta, Manitoba and Newfoundland and Labrador, NCDII is a tort, and throughout the country, it is a crime. But the two feel it’s more important than ever to develop laws that would allow for better procedures and remedies, specifically speedy injunctive relief.
Laidlaw acknowledges that no law can undo the negative impact of “revenge porn” on its victims once the images are disseminated. However, she says removing or de-indexing the material from search engines as soon as possible should be the top priority.
Laidlaw also notes that their proposals were written “with the self-represented litigant in mind,” allowing them to get relief in a simple procedure without huge costs. Young and Laidlaw considered small claims court an option, but the idea was dropped, as small claims courts can’t provide injunctions.
Young and Laidlaw developed two distinct torts that can arise out of the distribution of revenge porn. The first is an action for damages, where the victim of the distribution of sexual images can sue the person responsible for spreading them. The second tort seeks to address limiting the distribution of such images.
While the ability exists in most jurisdictions for courts to provide an injunction relating to revenge porn, Professor Laidlaw says that the ULCC act she and her colleague developed expands on the idea. She says that it is a two-track process that encompasses a speedy takedown procedure, along with the traditional legal action and claim for damages.
A fast-track proceeding would be strict liability, with the plaintiff only having to prove that the defendant has distributed an intimate image. Remedies would be declaratory and injunctive, requiring the defendant to remove content and, more realistically, leading internet intermediaries to remove content and de-index search engine results. It could also award some damages.
Further action for damages would be a more traditional tort, in that the defendant could defeat the claim by showing an absence of fault (no intent to distribute or no knowledge of the contents) or by establishing another defence, such as consent to distribute the image. The plaintiff would also have to produce evidence related to harm and the defendant’s conduct to obtain more than nominal damages.
Their proposed ULCC act on non-disclosure of intimate images also broadens the definition of such images to address evolving forms of abuse: threats to distribute, “deep fakes,” and pictures where individuals are not identifiable.
Indeed, says Young, any revenge porn legislation should be clear that a plaintiff does not need to be identifiable to a third party. It is enough that plaintiffs can prove they are in the image.
Even more effective, the two academics write in their paper, “would be a specialized tribunal for online harms.” However, their proposals reflect a “realistic compromise” between the status quo (expensive, slow, complicated) and what we might be able to do in the absence of financial, political and division-of-powers constraints.
Intermediaries like Google, Twitter, Instagram and YouTube all have terms of service that prohibit revenge porn, Young and Laidlaw write, and would likely provide a faster remedy than legal proceedings. However, there are drawbacks. For example, Google won’t de-index or remove an image in cases where consent was given for posting, then revoked — and intermediaries do not always take down content alleged to be unlawful.
A court order clarifies that the content is unlawful and can instruct that content be removed by third-party providers, says Laidlaw. Intermediaries would be explicitly excluded in the fast-track tort proposal.
To keep things simple by avoiding litigation over whether an intermediary has taken reasonable steps, she says. As well, compliance would not depend on whether an intermediary is a named defendant.
Young and Laidlaw write that current laws have been criticized as being ineffective, slow, expensive and complicated, making civil actions unattractive to those who want to minimize the damage of their intimate images being distributed online without consent.
“While new laws can never be a complete solution to the problem of NCDII, we are convinced that better laws can better achieve justice.”
