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Saskatchewan's New "Revenge Porn" Law

The ever-evolving nature of social media and smartphones has challenged governments to keep up to date with current technology and the social harms that may result.  In response to the advent of cyberbullying and revenge porn, the Saskatchewan provincial government has made changes to The Privacy Act.  On September 15, 2018, amendments to The Privacy Act came into effect in Saskatchewan, providing new legal avenues for those whose intimate images have been shared without their consent. 

The Privacy Act (the "Act") now contains a definition for "intimate image".  An "intimate image" is defined as a visual recording (photograph, film, or video) in which a person is nude or exposing themselves or is engaged in explicit sexual activity.  Under the Act, it is wrongful to distribute intimate images of another person without that person's consent.  Further, a person does not have to prove any loss or damages in order to sue. 

If a claim is made that intimate images were distributed without a person's consent, it is presumed that the intimate images were distributed without the consent of the person depicted in the image.  The defendant must establish that he or she had reasonable grounds to believe that he or she had consent to distribute the intimate image.

An action claiming the non-consensual distribution of intimate images can be commenced through the Court of Queen's Bench or through Provincial Court.  If proceeding through Provincial Court, the cap for damages is $30,000.  There is no cap for damages in Court of Queen's Bench.

A court can make a number of orders if a claim for the non-consensual distribution of intimate images is successful.  A court may make a monetary award, which is an award damages.  Types of damages that could be awarded are general, special, aggravated, and punitive.  The purpose of damages is to compensate for a loss.  General damages are awarded for non-monetary losses, such as pain and suffering.  Special damages are quantifiable, meaning the exact amount of the damage can be measured.  Punitive damages are awarded as a deterrent and to penalize a defendant in cases where he or her conduct has been malicious or particularly egregious.  Aggravated damages compensate for intangible injuries resulting from a defendant's actions, i.e. injuries aggravated by the defendant's behaviour.

A court may also order that any profits received as a result of non-consensual distribution of an intimate image be recovered by the plaintiff.  An injunction could be issued prohibiting further distribution of the intimate image.

A person could also be charged under the Criminal Code for distributing intimate images without a person's consent.  Under section 162.1 of the Criminal Code, a person who "knowingly" distributes an intimate image without the consent of the person depicted in the image can be charged with an indictable offence that could result in up to five years in prison.  

Our Litigation team can answer any questions you may have about Saskatchewan's new "revenge porn" law.  Contact us if you need more information.

December, 2018

Disclaimer:  This article contains general information only as of the indicated date.  It relates to Saskatchewan, Canada and may not be applicable in your jurisdiction.  It does not constitute legal advice to you and no solicitor client relationship will be established by reading this article.  Specific legal advice should be obtained by the reader on any topics discussed above from a lawyer entitled to practise law in your jurisdiction.

© Copyright 2018 Olive Waller Zinkhan & Waller LLP. All rights reserved. No part of this publication may be transmitted or reproduced without the written permission of the copyright holder.