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SNL2018 CHAPTER I-22

INTIMATE IMAGES PROTECTION ACT

Amended:

 

CHAPTER I-22

AN ACT RESPECTING THE PROTECTION OF INTIMATE IMAGES

(Assented to November 15, 2018)

Analysis



Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:

Short title

        1. This Act may be cited as the Intimate Images Protection Act .

2018 cI-22 s1

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Definitions

        2. In this Act

             (a)  "court" means the Supreme Court of Newfoundland and Labrador ; and

             (b)  "intimate image" means a visual recording of a person made by any means, including a photograph, film or video recording

                      (i)  in which the person depicted in the image

                            (A)  is nude or is exposing his or her genital organs or anal region or her breasts, or

                            (B)  is engaged in explicit sexual activity,

                     (ii)  that was recorded in circumstances that gave rise to a reasonable expectation of privacy with respect to the image, and

                    (iii)  where the image has been distributed, in which the person depicted in the image retained a reasonable expectation of privacy at the time it was distributed.

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Interpretation

        3. For the purposes of this Act, a person distributes an intimate image where that person publishes, transmits, sells, advertises or otherwise makes the intimate image available to a person other than the person depicted in the intimate image.

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Distribution of intimate image without consent

        4. (1) It is a tort for a person to distribute an intimate image of another person without the other person's consent.

             (2)  A person who distributes an intimate image commits the tort referred to in subsection (1) against the person depicted in the intimate image where the person

             (a)  knows that the person depicted in the intimate image did not consent to the distribution; or

             (b)  is reckless as to whether or not the person depicted in the intimate image consented to the distribution.

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Action without proof

        5. An action for the non-consensual distribution of an intimate image may be commenced without proof of damage.

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Expectation of privacy

        6. In an action for the non-consensual distribution of an intimate image, the person depicted in the intimate image does not lose the expectation of privacy with respect to the intimate image where

             (a)  the person

                      (i)  consented to another person recording the intimate image, or

                     (ii)  provided the intimate image to another person; and

             (b)  that other person knew or ought reasonably to have known that the person depicted in the intimate image did not consent to the further distribution of the intimate image.

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Reverse onus

        7. Where an action for the non-consensual distribution of an intimate image is commenced,

             (a)  it shall be presumed that the intimate image was distributed without the consent of the person depicted in the intimate image; and

             (b)  the defendant shall establish that he or she had reasonable grounds to believe that he or she had ongoing consent for distribution of that intimate image.

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Defence

        8. It is a defence to an action for the non-consensual distribution of an intimate image to show that the distribution of the intimate image is in the public interest and does not extend beyond what is in the public interest.

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Remedies

        9. (1) In an action for the non-consensual distribution of an intimate image, the court may

             (a)  award damages to the plaintiff, including general, special, aggravated and punitive damages;

             (b)  order the defendant to account to the plaintiff for any profits that have accrued to the defendant as a result of the non-consensual distribution of the intimate image and make an order in favour of the plaintiff with respect to the recovery of those profits from the defendant;

             (c)  issue an injunction on the terms and conditions that the court determines appropriate in the circumstances; and   

             (d)  make any other order that the court considers just and reasonable in the circumstances.

             (2)  In awarding damages in an action for the non-consensual distribution of an intimate image, the court may disregard an order made under paragraph (1)(b) in respect of the non-consensual distribution of the intimate image.

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Publication ban

      10. (1) Where an action for the non-consensual distribution of an intimate image is commenced, a person shall not publish or make public the names of the parties to the action or any information that may identify the parties to the action until the court determines whether to issue an order under subsection (2).

             (2)  The court may make an order prohibiting the publication of the name of any party to the action or any information that may identify a party to the action where it considers the making of the order to be in the interest of justice.

             (3)  Notwithstanding subsection (1), where a person involved in an action for the non-consensual distribution of an intimate image is under the age of majority, a person shall not publish or make public the name of that person or any information that may identify that person.

             (4)  Subsection (3) continues to apply after the person reaches the age of majority.

             (5)  A person who contravenes subsection 10(1) or (3) commits an offence.

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Other rights not affected

      11. A right of action under this Act is in addition to, and does not affect, any other right of action or remedy available to a person under another Act.

2018 cI-22 s11