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CRT Publishes Draft Intimate Image Protection Order Rules

Written by ERIK MAGRAKEN on . Posted in Intimate Images Protection Act.

In March 2023 the BC Government passed the Intimate Images Protective Act.  The regulations under the Act and the way the Civil Resolution Tribunal (“CRT”) will deal with these claims are yet to be finalized but things now appear to be getting closer.

Today the CRT announced draft rules for these claims and requested public feedback.  The below has been published on the CRT’s website:

The Intimate Images Protection Act (IIPA), passed in March 2023, gives the Civil Resolution Tribunal (CRT) jurisdiction to resolve claims about non-consensual sharing of intimate images.

Under IIPA, the CRT can issue protection orders that require an intimate image be deleted, de-indexed, and/or removed from a website or social media platform. If a person or internet platform doesn’t comply with a protection order, the CRT can order an administrative penalty. Administrative penalties are payable to government. The CRT can also award damages of up to $5,000.

The launch date for the CRT accepting these claims will be determined by the BC government. That date has not yet been announced.

To prepare for this change, we’ve created a new set of CRT rules. These rules are called the Intimate Image Protection Order Rules. They will apply to claims for protection orders and administrative penalties.

The newly drafted rules are ready to share with you. We’d like your feedback on them.

A full copy of the DRAFT RULES can be found here.

Why OnlyFans and Other Models Should Know About BC’s Intimate Images Protection Act

Written by ERIK MAGRAKEN on . Posted in Intimate Image Protection Claims, Intimate Images Protection Act, Removing Naked Images and Vidoes, Removing Nude Images and Videos.

This week BC passed the Intimate Images Protection Act.

This law gives victims of wrongful intimate image distribution powerful new remedies and rights to control their intimate images online.

The law is broad in its application.  It captures activity such as revenge porn and other wrongful sharing of intimate images.  The broad language may also give power tools to models and others that have their intellectual property shared beyond their consent.

If you have images behind an online paywall you consent to people that subscribe to view your images.  You don’t consent to people stealing the images and reposting them for others to see outside of that paywall.

The BC Intimate Images Protection Act is worded so broadly it may provide a meaningful remedy in these circumstances (and one that is faster and potentially more effective that cumbersome copyright prosecutions).

If you can prove there is an ‘intimate image’ of you online, and you can prove that you do not consent to that image being ‘distributed’ in the way that it is the law gives you remedies.  These include the ability to get a quick BC Civil Resolution Tribunal order that the image be removed.  By whoever is posting it.  Failure to abide by the order can give rise to claims of damages for the continued distribution.  These damages can include claims for compensatory loss (ie lost income), and even aggravated and punitive damages.

If your intimate images are being shared without or beyond your consent get familiar with this law.  If you want to learn more you can contact us for a free consultation. 

 

Intimate Images Protection Act Now Law

Written by ERIK MAGRAKEN on . Posted in Intimate Image Protection Claims, Intimate Images Protection Act, Removing Naked Images and Vidoes, Removing Nude Images and Videos.

The British Columba Intimate Images Protection Act, which was first introduced earlier this month, has now passed into law.  It passed third reading and received Royal Assent on March 30, 2023.

This law was presented to the public as an anti revenge porn law.  But it does so much more than that.

If you have an intimate image ‘distributed’ by others you can tell them to stop.  Even if you previously consented to the sharing or distribution of the image you can revoke your consent.   Anyone who refuses to abide by these wishes can be ordered to stop distributing the images.  The law also gives victims the right to seek compensatory, aggravated and punitive damages for the unwanted distribution of their intimate images.  It applies not just to actual images but even deep fakes and other damaging nude or sexual images.

MacIsaac & Company is proud to expand our legal services to provide victims of unwanted intimate image distribution assistance in sending demand letters, obtaining judicial or tribunal takedown orders, and litigation for damages.

Your Body.  Your Choice.  Even Online.

 

One Thing You Can Do Right Now To Reclaim Your Intimate Images

Written by ERIK MAGRAKEN on . Posted in Intimate Image Protection Claims, Intimate Images Protection Act, Removing Naked Images and Vidoes, Removing Nude Images and Videos.

Do you have intimate images of you that have been distributed without your consent?  Or with consent that you now wish to withdraw?

There is one thing British Columbians can do right now to start regaining control of these images.

As discussed yesterday, BC introduced Bill 12, titled the “Intimate Images Protection Act” which will give a whole assortment of new legal tools to people who want to regain control of unwanted use of their intimate images.

The Bill is not law yet, so how can it already help?  Because it will be retroactive.  The bill states that

“On the date this Act is brought into force, this Act applies to the following that occur on or after the date this Act receives First Reading in the Legislative Assembly:

(a) a distribution of an intimate image depicting an individual, without the individual’s consent;

(b) a threat to distribute an intimate image depicting an individual.“

In plain English this means that once this Bill becomes law that any of the above that occured after this week (the date of First Reading) is an unlawful act.

So what can you do right now?  Write to anyone that has distributed your unwanted intimate images, tell them you did not or no longer consent to those images being distributed.  Demand that they make every reasonable effort to destroy and otherwise make the intimate image unavailable to others.  Tell them that if they fail to do so you will use that failure in your claim for remedies under your soon to be acquired legal rights under BC’s Intimate Images Protection Act.

 

BC Revenge Porn Bill Creates Concept of “Revocable Consent”

Written by ERIK MAGRAKEN on . Posted in Intimate Image Protection Claims, Intimate Images Protection Act, Removing Naked Images and Vidoes, Removing Nude Images and Videos.

This week BC introduced a bill which proposes to give victims of revenge porn more legal remedies.

Imagine you share intimate images with a partner who later abuses that trust and leaks them on the internet.  Or imagine someone obtains images without your consent at all and posts them on line.   Or threatens to.  The proposed BC law creates new remedies for these situations.

But it goes further.  Bill 12, titled the “Intimate Images Protection Act” goes on to create the concept of “revocable consent”.  Meaning that even if you consented to images being online in the first place (such as a live stream) you may still have a remedy to have them removed.

In the broadest of terms the Bill gives victims (including minors and even deceased individuals) the right to bring an application to a ‘decision maker’ to seek various remedies including the removal of the images and awards of damages.  The ‘decision makers’ are broadly defined to include BC Supreme Court judges, provincial court judges, and even tribunal members of BC’s online court the Civil Resolution Tribunal.

In a sweeping power the Bill allows applicants to seek take down orders without notice and even if they sue the wrong party the ‘decision maker’ can make a whole array of orders to whoever can take down the image including

(b) order the person who distributed the intimate image to

(i) delete or destroy all copies of the intimate image in the person’s possession or control, and

(ii) make every reasonable effort to make the intimate image unavailable to others, including by

(A) having the intimate image removed from any platform operated by an internet intermediary and from any other electronic form of application, software, database and communication method, and

(B) having the intimate image de-indexed from any search engine;

(c) order an internet intermediary or other person or organization to

(i) remove the intimate image from any platform operated by the internet intermediary and from any other electronic form of application, software, database or communication method,

(ii) delete or destroy the intimate image, and

(iii) de-index the intimate image from any search engine;

(d) order a person to provide any information the decision maker considers necessary to further the objectives of removal, deletion, destruction or de-indexing of the intimate image;

(e) make any other order the decision maker considers just and reasonable in the circumstances.

Those who want ‘intimate images’ removed have fairly easy remedies with the law proposing a reverse onus saddling respondents with”the burden of proving that the image is not an intimate image because the individual depicted in the image did not have a reasonable expectation of privacy in the image”.

The definition of ‘intimate images’ casts a wide net and covers the following:

a visual recording or visual simultaneous representation of an individual, whether or not the individual is identifiable and whether or not the image has been altered in any way, in which the individual is or is depicted as

(a) engaging in a sexual act,

(b) nude or nearly nude, or

(c) exposing the individual’s genital organs, anal region or breasts,

and in relation to which the individual had a reasonable expectation of privacy at,

(d) in the case of a recording, the time the recording was made and, if distributed, the time of the distribution, and

(e) in the case of a simultaneous representation, the time the simultaneous representation occurred;

Potential damages are broad and include non pecuniary damages, aggravated damages, punitive damages and even administrative penalties.

The law by default protects the identity of the victims.

It also requires internet intermediaries (think platforms like Facebook, Google, Instagram and TikTok) to comply with removal orders and leaves them open to damage claims if they have not “taken reasonable steps to address the unlawful distribution of intimate images in the use of its services.“.

On the topic of revocable consent the proposed law specifically says as follows:

(1) An individual who consented to the distribution of an intimate image depicting the individual may revoke consent to that distribution at any time.

(2) If an individual depicted in an intimate image

(a) consented to the distribution of the intimate image,

(b) later revokes that consent, and

(c) communicates that revocation to a person who distributed the intimate image,

the person who distributed the intimate image must make every reasonable effort to make the intimate image unavailable to others.

(3) The person who distributed the intimate image commits an unlawful act under section 3 if the person does not make the efforts described in subsection (2) within a period of time that is reasonable in the circumstances.

The Bill is worded very broadly and even can apply to images in which they cannot be identified and even cases where they consented to the  “image’s distribution by a person other than the individual“.  This wording is so broad it could potentially target content such as consensual adult pornography where a person has regret after the fact.

The Bill is not law yet.  It is always possible the language will be amended before it does pass into law.  The Bill also allows for significant regulations to be passed further clarifying it but as it presently reads it proposes a broad range of far sweeping remedies for victims of revenge porn and more.  This is legislation worth keeping an eye on.

 

 

Alberta Recognizes Tort for Non Consensual Sexual Image Sharing

Written by ERIK MAGRAKEN on . Posted in Uncategorized.

In what I believe is the first case in Alberta recognizing the tort of “Public Disclosure of Private Facts” a Court adopted this tort and awarded significant damages following the non-consensual publication of private sexual images.

In the recent case (ES v. Shillingham) the parties were involved in an intimate relationship.  Of the course of the relationship the Plaintiff shared sexual images with the Defendant “as a private gift to him.” and on the understanding that “he would not distribute these images in any way.“.  Despite this he chose to share these images on the internet over the years.

In recognizing a new tort and assessing damages to address this wrongdoing Justice Avril Inglis provided the following reasons:

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Privacy A Rare Protection For Personal Injury Plaintiffs

Written by admin on . Posted in ICBC Privacy Issues, Uncategorized. 50 Comments on Privacy A Rare Protection For Personal Injury Plaintiffs

When a personal injury claim proceeds to trial oftentimes publicly available reasons for judgement are published which are accessible by all.  These frequently reveal details about a Plaintiff’s health, limitations, injuries and other personal details.  Reasons for judgement were released discussing if a Plaintiff should be granted anonymity in published reasons for judgement.  In short, the Court held that absent exceptional circumstances, such privacy protections should not be granted.
In the recent case (Davidge v. Fairholm) the Plaintiff, who was injured in a collision, asked for anonymity on the basis that “ publishing the plaintiff’s name might hurt him in his employment, as his employer might treat him differently after learning about his medical issues.  This is because the plaintiff works in employment that involves some physical stress on his body”.  ICBC objected to the reqest for privacy.  In denying the Plaintiff’s request Madam Justice Griffin provided the following reasons:

[12]         The law is clear that anonymizing a judgment by substituting initials for a litigant’s name should only occur in rare circumstances, such as where it is necessary to protect a vulnerable litigant or a vulnerable person who can be identified through the litigant.

[13]         I find that there is nothing exceptional about this case which requires a publication ban on the name of the plaintiff.  There is no more of an invasion of privacy in this case than in an ordinary case and the plaintiff is not a vulnerable person.

[14]         I also note that if publication bans were a matter of course in personal injury trials this could negatively impact the administration of justice.  There are sound reasons for publishing the names of litigants.  One benefit of the open court principle is that it brings home to a person who testifies the importance of telling the truth and increases the potential consequences of failing to do so.  This is one reason the Third Party’s opposition to such an application is an important factor to weigh.

[15]         The application to anonymize the judgment is therefore refused.

"The special place of confidentiality in the physician-patient relationship" Discussed by BC Court of Appeal

Written by admin on . Posted in ICBC Privacy Issues. 51 Comments on "The special place of confidentiality in the physician-patient relationship" Discussed by BC Court of Appeal


In reasons for judgement released this week the BC Court of Appeal discussed physician patient confidentiality and the limited basis for disrupting this.
In this week’s case (Logan v. Hong) the Plaintiff was advancing a class action for damages on behalf of  “all persons who were injected with Dermalive in Canada and who thereafter developed granulomas in the area injected with Dermalive.”   The Plaintiff proposed to notify the class members by direct mail.   Mr. Justice Sewell agreed this was appropriate and ordered various physicians to provide the information concerning these patients to counsel for the plaintiff.
The Court of Appeal overturned this order finding it would unduly interfere with doctor/patient confidentiality.  In doing so the BC Court of Appeal provided the following reasons:
[11]         Laudable as the plaintiff’s intention may be to seek redress for persons who may have a claim to compensation for deleterious consequences from this medical treatment, such generous intention does not justify, in my view, the invasion of privacy that is inherent in dipping into the physician-patient relationship to discover the names, addresses, and contact information of persons who received this treatment. Each patient is entitled to maintenance of the confidentiality implicit in his or her attendance in a physician’s examining room and protection of his or her privacy on a personal matter, absent serious concerns relating to health or safety, or express legislative provisions compelling release of the information in the public interest. In my view, the judge erred in principle by elevating the purposes of the Class Proceedings Act and the search for legal redress above the fundamental principle of confidentiality that adheres, for the benefit of the community, to the physician-patient relationship…
[13]         The special place of confidentiality in the physician-patient relationship is of long standing. In Halls v. Mitchell, [1928] S.C.R. 125, the Supreme Court of Canada commented upon the duty of secrecy owed to a patient, affirming that the patient’s right of confidentiality is superseded only by issues of paramount importance. Mr. Justice Duff, for the majority, described this principle at 136:
We are not required, for the purposes of this appeal, to attempt to state with any sort of precision the limits of the obligation of secrecy which rests upon the medical practitioner in relation to professional secrets acquired by him in the course of his practice. Nobody would dispute that a secret so acquired is the secret of the patient, and, normally, is under his control, and not under that of the doctor. Prima facie, the patient has the right to require that the secret shall not be divulged; and that right is absolute, unless there is some paramount reason which overrides it. Such reasons may arise, no doubt, from the existence of facts which bring into play overpowering considerations connected with public justice; and there may be cases in which reasons connected with the safety of individuals or of the public, physical or moral, would be sufficiently cogent to supersede or qualify the obligations prima facie imposed by the confidential relation.
                                                                                    [Emphasis added.]
[14]         And, at 138:
It is, perhaps, not easy to exaggerate the value attached by the community as a whole to the existence of a competently trained and honourable medical profession; and it is just as important that patients, in consulting a physician, shall feel that they may impart the facts touching their bodily health, without fear that their confidence may be abused to their disadvantage. …
                                                                                    [Emphasis added.]
[15]         More recently, the Supreme Court of Canada, referring to Halls, restated the significance of confidentiality to the physician-patient relationship in McInerney v. MacDonald, [1992] 2 S.C.R. 138, 93 D.L.R. (4th) 415, discussing at 148 a patient’s right to access to medical records:
When a patient approaches a physician for health care, he or she discloses sensitive information concerning personal aspects of his or her life. The patient may also bring into the relationship information relating to work done by other medical professionals. The policy statement of the Canadian Medical Association cited earlier indicates that a physician cannot obtain access to this information without the patient’s consent or a court order. Thus, at least in part, medical records contain information about the patient revealed by the patient, and information that is acquired and recorded on behalf of the patient. Of primary significance is the fact that the records consist of information that is highly private and personal to the individual. It is information that goes to the personal integrity and autonomy of the patient. As counsel for the respondent put it in oral argument: “[The respondent] wanted access to information on her body, the body of Mrs. MacDonald.” In R. v. Dyment, [1988] 2 S.C.R. 417, at p. 429, I noted that such information remains in a fundamental sense one’s own, for the individual to communicate or retain as he or she sees fit. Support for this view can be found in Halls v. Mitchell, [1928] S.C.R. 125, at p. 136. There Duff J. held that professional secrets acquired from a patient by a physician in the course of his or her practice are the patient’s secrets and, normally, are under the patient’s control. In sum, an individual may decide to make personal information available to others to obtain certain benefits such as medical advice and treatment. Nevertheless, as stated in the report of the Task Force on Privacy and Computers (1972), at p. 14, he or she has a “basic and continuing interest in what happens to this information, and in controlling access to it.”
                                                                                    [Emphasis added.]
[16]         Whether referred to as secrecy, personal autonomy, confidentiality, or privacy, the patient’s interest in protecting information of his or her medical treatment is reflected in the Code of Ethics of the Canadian Medical Association under the heading Fundamental Responsibilities:
Privacy and Confidentiality
31. Protect the personal heath information of your patients.
…
35. Disclose your patients’ personal health information to third parties only with their consent, or as provided for by law, such as when the maintenance of confidentiality would result in a significant risk of substantial harm to others or, in the case of incompetent patients, to the patients themselves. In such cases take all reasonable steps to inform the patients that the usual requirements for confidentiality will be breached…
[25]         I conclude that, giving full weight to the principle of privacy and confidentiality inherent in the physician-patient relationship, the limited circumstances that call for breaching the patients’ privacy are not present here.

ICBC Denied Access to Plaintiff's Vacation Photos

Written by admin on . Posted in BCSC Civil Rule 7, ICBC Privacy Issues, Uncategorized.


Reasons for judgement were recently released by the BC Supreme Court, Victoria Registry, dismissing an ICBC application to compel production of a Plaintiff’s vacation photos.
In the recent case (Dawn-Prince v. Elston) the Plaintiff was injured in a 2007 collision.  In the course of her lawsuit she was examined for discovery where she “testified that she had been on these vacations…(and) about her activities on the vacations“.
ICBC brought an application to have access to any photos taken of these holidays.  The Court dismissed this application finding that while canvassing the scope of a Plaintiff’s vacation activities is fair game at discovery production of photos is not required.  In dismissing the application Master McCallum provided the following reasons:
[3]  In the authorities to which I was referred, the court has on some occasions ordered production of photographs in similar circumstances where on vacation…
[4]  The difference in this case is that the plaintiff acknowledges that she engaged in the sporting and physical recreational activities, including the very ones that are referred to in the Fric decision; hiking, scuba diving, and so on.  The photographs that are requested have been reviewed by counsel or someone in cosunsel’s office, Marler, who swears in her affidavit that she reviewed 23 photographs in which the plaintiff was shown and says that they do not depict the plaintiff in strenuous physical activities; rather they depict her standing, sitting, or walking, by the pool, or on the beach…I am satisfied from that evidence that production of this evidence, which is clearly the second stage of documentary discovery contemplated by the Rules, is not appropriate.  These photographs, from the evidence on this application, will not assist the defendant in defending the claim.  The evidence of the plaintiff, of course, with respect tow hat she did on her vacations nay well assist, but the photographs neither contradict nor confirm that.  They show the plaintiff on the evidence in activities that are not inconsistent with anything other than standing, sitting, or walking, none of which she says she cannot do,..
[6]  The application for production of photographs…is dismissed.