Intimate Image Claims Worth “Considerably More” Than $5,000
The first precedent has been handed down invoking BC’s new Intimate Images Protection Act. In short the legislation makes it unlawful to share intimate images of another person without their consent. Even if you initially obtained the images consensually. The law is broad in its reach.
The law allows civil claims to be prosecuted in the Civil Resolution Tribunal, Provincial Court, or Supreme Court. Choosing the CRT is faster, cheaper and easier. But the CRT has a limit of $5,000 in damages in these types of claims. In today’s case the CRT found that these cases, once liability is established, are worth ‘considerably more’ than their limit so awarding the $5,000 seems to be a default damage assessment in that venue.
In the recent case (BDS v. MW) the applicant shared semi nude images of a sexualized nature with the respondent. The respondant shared these with another without the applicant’s consent. The key facts and findings were as follows where the CRT provided some worthwhile comments on the definition of what constitutes an intimate image along with damage assessments:
The parties have never met in person. They only interacted via direct message on X. Their online interaction was relatively brief, all taking place on March 10, 2021. Their chat was flirtatious, and before long, they both shared numerous images, some nude and some not. There are two photos at issue in this dispute that BDS sent to MW. In the first, BDS is facing the camera. It shows him shirtless and in tight underwear with the outline of his erect penis clearly visible. The second is taken from the side with BDS looking over at the camera. It shows BDS pulling his underwear down to expose parts of his buttocks. Again, he is shirtless. I will call these photos the underwear photo and the buttocks photo….
With that, it is now beyond dispute that MW sent EH uncropped versions of the underwear photo and the buttocks photo. As noted, CS did not provide any evidence. However, given what EH’s evidence revealed, I do not find MW’s evidence that he sent CS only cropped photos to be credible or reliable. I say this because he was clearly wrong in his initial evidence that he sent only cropped photos to EH. I find that he likely provided the same uncropped photos to CS….
I find that there are two components that inform whether a person is “nearly nude” in an image. First, to state the obvious, the term “nearly nude” requires that the person not be wearing very much clothing. However, I find that the term “nearly nude” is not characterized by the amount of clothing alone. The context for the image’s creation is crucial. To take the example above, surreptitious footage from a changeroom of a woman trying on a bikini would likely be an intimate image, whereas a photo of a public beach that includes a distant shot of the same woman in the same bikini likely would not be.
Turning first to the underwear photo, BDS’s underwear are small but not more revealing than many swimsuits. However, the photo is very different than a photo of a man at the beach. It is taken for a flirtatious or seductive purpose. The outline of BDS’s erect penis is plain to see. Anyone seeing the photo would immediately recognize that it depicts a sexualized and private moment. The same can be said for the buttocks photo. The image is clearly taken for a sexual purpose and shows much of BDS’s buttocks. The IIPA is designed to protect a person’s autonomy over photos like these. I have no difficulty concluding that both photos depict BDS as “nearly nude”.
I also find that BDS had a reasonable expectation of privacy when he took the photos and when MW shared them. The photos were taken at his home and he sent the photo only to MW as part of a private, intimate chat. He never gave MW consent to share them with anyone.
Therefore, I find that the two images are “intimate images” under the IIPA. Section 3(1)(a) of the IIPA says that a person commits an unlawful act if they distribute another person’s intimate image without their consent. I find that MW did so. I turn next to the question of damages….
The IIPA empowers people to choose between the CRT, the Provincial Court, and the Supreme Court when claiming damages. There are pros and cons to each venue. BDS chose the CRT’s faster and simpler process and in doing so limited his claim to the CRT’s $5,000 monetary limit. There is no precedent for a non-pecuniary damages award for anything close to $5,000, and I have no difficulty concluding that he is entitled to considerably more. I therefore order MW to pay $5,000 in non-pecuniary damages. This means I do not have to consider whether BDS is also entitled to aggravated or punitive damages. I note that I have created a separate order for this damages award, which includes BDS’s and MW’s full names for enforcement purposes. For clarity, the publication ban I ordered above covers both this decision and the resulting orders…
57. I make the following protection orders under the IIPA section 5(3):
a. The photo showing BDS in his underwear and the photo showing BDS’s buttocks both meet the definition of “intimate image” under the IIPA (together, the photos). I have attached the photos to the protection order as Schedule A, edited by me to blur any intimate or identifying features,
b. I determine that MW shared the photos without BDS’s consent, and that this was unlawful.
c. I order MW and any other person who shared the photos to immediately:
i. Delete or destroy all copies of them in their possession or control, and
ii. Make every reasonable effort to make the photos unavailable to others, including by
1. having them removed from any online website or platform and from any other electronic form of application, software, database, or communication method, and
2. Having them de-indexed from any search engine.
d. Within 7 days of the CRT informing MW of BDS’s email address, I order MW to provide BDS with any contact information he has for ES.
e. I order internet intermediaries or any other person or organization to immediately:
i. Remove the photos from any platform it operates and from any other electronic form of application, software, database, or communication method,
ii. Delete or destroy the photos, and
iii. De-index the photos from any search engine.
In the protection order, I have included the usernames of the X accounts involved in the sharing as Schedule B.
58. Within 30 days of this decision, I order MW to pay BDS $5,205.45, broken down as follows:
a. $5,000 in non-pecuniary damages, and
b. $205.45 for $175 in CRT fees and $30.45 in dispute-related expenses.