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BC man awards damages after intimate images were shared

In a unique case, a BC tribunal has ruled in a dispute over the non-consensual sharing of intimate images, awarding damages and issuing an order to destroy the photos and take them offline.

The province introduced the Intimate Images Protection Act earlier this year, giving the Civil Resolution Tribunal jurisdiction to hear these types of claims, providing an alternative to the more difficult, lengthy and potentially expensive options of seeking redress through criminal courts or the civil court.

The tribunal published its first ruling online on Tuesday in a case in which a “nearly nude” image of a man, shared during a “flirty” direct message exchange, was publicly posted by an anonymous account on the social media platform X, formerly known as Twitter .

The claimant, identified by the initials BDS, brought the claim against a man identified by the initials MW. This man, the decision said, was not responsible for the public social media post but was found to have shared images that BDS shared with him in a “private, intimate chat” without consent.

“The internet doesn’t forget. Although MW did not post them, by sharing the images he lost control of them. Even if the images of .

What is a ‘nearly nude’ image?

The first question the tribunal had to answer in the case was whether or not the images BDS shared were intimate images – which the legislation defines as images that “depict or show the applicant engaged in a sexual act, naked or nearly naked, or their genitals, anal region or breasts.”

In the footage, BDS was shirtless but wearing underwear, not engaging in sexual acts and not exposing any of the body parts mentioned, the decision said.

“Nearly naked” is not precisely defined in the law and therefore Regehr had to interpret its meaning and decide whether it applied in this case.

“It’s somewhat ambiguous. The general definition of “intimate image” makes clear that the overarching goal of the IIPA is to promote autonomy and privacy over images that are either intentionally sexual (such as an intimate selfie) or that may be sexualized by others (such as a surreptitiously taken photo in a dressing room or bathroom),” he wrote.

“The term ‘almost naked’ should be interpreted in that spirit.”

While an obvious part of being “nearly naked” is a lack of clothing, Regehr says context is also crucial, a point he illustrated using the example of a woman in a bikini.

“Closed shots from a locker room of a woman trying on a bikini would probably be an intimate image, while a photo from a public beach with a long shot of the same woman in the same bikini probably wouldn’t be,” he explained.

In this case, BDS wore underwear that was “small but no more revealing than many swimsuits,” the decision said — but the photos were selfies and they were taken and shared for a “flirty or seductive purpose.”

Although BDS did not expose his genitals, “the outline of BDS’ erect penis can be clearly seen” in one photo. In the other, he pulls down his underwear to expose “a large portion” of one of his buttocks.

“The IIPA is designed to protect an individual’s autonomy over photographs like these,” Regehr wrote.

Were the images shared without permission?

The second question the tribunal had to answer was whether BDS had a reasonable expectation of privacy in sharing the image with MW. The tribunal found that this was the case.

“The photos were taken at his home and he only sent the photo to MW as part of a private, intimate conversation. He never gave MW permission to share them with anyone,” Regehr wrote.

MW admitted to sharing the images with someone else, but argued that he had a valid reason for doing so, namely to help a woman who was being bullied online identify the person who allegedly harassed her.

MW also said that he tried to crop the images so that the private parts were not visible. However, the tribunal found that regardless of MW’s motivation, the images had not actually been cropped.

“I think MW clearly went far beyond what was necessary to help (the woman) identify BDS. All that was needed was a photo of his face,” Regehr wrote.

Damage and orders

BDS was awarded the maximum damages that the CRT can allow, which is significantly lower than what Canadian courts have awarded in the “very little publicized cases” involving non-consensual sharing of intimate images.

“The IIPA allows people to choose between the CRT, the provincial court and the Supreme Court when claiming compensation. There are pros and cons to each location. BDS opted for the faster and simpler procedure of the CRT and thus limited its claim to the CRTs. A monetary limit of $5,000,” Regehr wrote.

In addition to damages, the tribunal also issued a number of protection orders.

First, MW and anyone who shared the images were ordered to delete or destroy them “immediately” and to make “all reasonable efforts” to prevent them from being shared in the future. These efforts should include an attempt to remove them from social media platforms and de-index them from search engines.

In addition, “Internet intermediaries” are instructed to delete, destroy and de-index the photos.

Regehr noted that the legislation allows for further penalties in cases where an individual or company fails to comply with these orders. Individuals can be fined $500 per day up to a maximum of $10,000 and businesses can be fined $5,000 per day up to a maximum of $100,000.