Safeguarding Privacy in the Age of Social Media: Legal Remedies and Emerging Protections

The breach of one’s privacy has always been an important legal issue, but more so in the age of social media, where information, including intimate ages, can be disseminated instantaneously to the masses. In today’s post, we review some legal remedies available under our provincial laws when one’s privacy has been breached, including BC’s new Intimate Images Protection Act (IIAP).

A. Privacy Act

The Privacy Act creates a statutory right to sue for compensation when someone “willfully and without a claim of right” violates the privacy of another. Claimants have successfully applied the law in various circumstances, including:

• Using a scanner to monitor and record a neighbour’s phone calls;
• The landlord’s installation of a surveillance system that caused undue stress to the tenant;
• Being videotaped in the bathroom through a peephole;
• A financial institution’s unauthorized change of the client’s address in its computer system.

It should be noted that a claim under the Privacy Act will not be successful if the breach is justified. For example, if the breach occurred in the context of a proper law enforcement investigation, was authorized by a court order or was a publication relating to public interest. 

Furthermore, even if a breach of privacy has been established, the court may only award a nominal amount if no serious or lasting harm resulted from the breach. Converse, punitive or aggravated damages may be awarded if the court finds the conduct leading to the breach of privacy requires repudiation. This scenario is most common with unauthorized recordings or publications of a sexual nature.

The Privacy Act also creates a statutory right to sue if there is an unauthorized use of one’s name or portrait.

B. Personal Information Protection Act

The Personal Information Protection Act regulates how private organizations in B.C. must collect, protect and disclose personal information they gather. The statute enables the creation of the Office of the Information and Privacy Commissioner, which investigates potential breaches under the Act. In the event that the Commissioner makes an order that a private organization has breached its statutory duties, the victim has the right to seek compensation from the private organization but must prove that the breach has resulted in some type of harm. 

C. Intimate Images Protection Act

Earlier this year, the B.C. legislature passed the Intimate Images Protection Act (IIPA), which came into force on Monday, January 29, 2024.

According to the Act, the definition of an intimate image is quite broad:

“intimate image” means a visual recording or simultaneous visual 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

1. engaging in a sexual act,
2. nude or nearly nude, or
3. exposing the individual’s genital organs, anal region or breasts.

The legislation is focused on the non-consensual distribution of intimate images and has two main branches:

1. Orders allowing the removal or destruction of intimate images and administrative penalties for non-compliance with the orders;
2. Statutory right to sue for wrongful publication of intimate images; and

The law does not apply when the distribution is consented to by court order or part of a proper law enforcement investigation. However, the law specifies that the consent for distribution is revocable at any time.

While the legislation is relatively new, it appears to have some promising features:

• Victims can seek an order for the removal and destruction of the intimate images that were unlawfully distributed, and the order can be directed against the distributor of the intimate images or an internet intermediary (e.g. search engines, social media, websites, etc.);
• The law allows broad discretion, and an order can potentially be directed against any other interested parties;
• The law applies to both actual distribution and the threat of distribution;
• Orders can be sought on behalf of a victim who is a minor or who has passed away;
• Victims have a statutory right to sue for compensation;
• The law specifically allows for injunctive relief; and
• Publication bans apply to legal proceedings related to seeking the above orders to avoid further infringement on the victim’s privacy.

Options When Seeking an Order to Remove or Destory Intimate Images

An applicant can apply either to the Civil Resolution Tribunal (the “CRT”) or the Supreme Court of British Columbia:

Applying to the Civil Resolution Tribunal (CRT): The CRT is an administrative tribunal with decision-makers who are not judges. The CRT is meant to be a more efficient and affordable alternative to going to court as it discourages the use of lawyers, has simplified evidentiary rules, and is based on online submissions. The main benefit of choosing the CRT over the court system is that it tends to be a less costly process for the applicant. It is also supposed to be a speedier process, but this has yet to be seen, given that the CRT appears to have growing backlogs in other areas of disputes it handles. However, the CRT has indicated on its website that priority will be given to intimate image cases.

Applying to the Supreme Court: While litigation in the Supreme Court can be time-consuming, the court does have protocols for expedited hearings on urgent matters, which, in some situations, can be quicker than applying to the CRT. Furthermore, depending on the particular facts of a case, the more robust evidence-gathering tools available under the Supreme Court Civil Rules may be necessary.

Important Considerations for Victims Seeking Compensation

A victim has the option of bringing the claim to the Civil Resolution Tribunal (CRT), the provincial Small Claims Court, or the Supreme Court of British Columbia. Which avenue a victim chooses to pursue requires important considerations regarding costs and compensation:

Bringing the claim to the Civil Resolution Tribunal (CRT): While the CRT is likely the cheapest option, compensation is limited to a maximum of $5,000. 

Bringing the claim to the Supreme Court of British Columbia: In contrast, the Supreme Court is likely the most expensive option, but the amount of potential compensation is not limited. 

Bringing the claim to the Provincial Small Claims Court: Finally, the Provincial Small Claims Court is the middle ground with respect to legal expenses, but compensation is limited to a maximum of $35,000.

Before You Decide, Consider This!

Before deciding on which route to take, it might help to consider two recent cases in which victims took their claims to the CRT, which limited the amounts they could be awarded for damages.

In the first case, the CRT awarded a man $5,000 after a sexually explicit video of him and another man was shared on OnlyFans without consent. In this case, the victim “chose the CRT’s faster and simpler process,” and in doing so, limited his claim to the CRT’s $5000 monetary limit.”

In another case, a B.C. woman was awarded $5,000 by the province’s small claims tribunal after intimate images stored on her phone were distributed without her consent. Shortly after the victim discovered that her images were stolen and shared, the man even threatened to distribute the content on social media if the victim was outspoken about his actions.

Both cases serve as real life examples where the CRT itself is recognizing that it may not be in the victim’s best interest to ask the CRT for compensation given the $5,000 cap. 

Final Considerations

Traditionally, one of the biggest hurdles in dealing with legal issues arising from online materials is that the internet hosts are often multinational corporations based outside of Canada; therefore, these companies might not be compliant with orders made within our jurisdiction. The Attorney General has stated that she has consulted with the main providers concerning their cooperation to enforce this new law, but details are lacking for now.

Do You Have Questions?

If you have questions about harassment law and your rights to privacy, our lawyers at Spraggs Law are here to help. Call (604) 359 1613 or contact us online today.

Please note: This article does not contain legal advice. If you would like advice on your specific situation, please contact Spraggs Law.