Sexualized image isn’t ‘intimate’ if it’s already been shared publicly, B.C. tribunal finds

A man uses a cell phone in New Orleans on Aug. 11, 2019. (AP Photo/Jenny Kane, File)

A woman seeking compensation for the non-consensual sharing of intimate images has had her case dismissed by a B.C tribunal which found she had no “reasonable expectation of privacy.”

The woman, referred to as “AQ” was seeking $5,000 in damages, which is the limit available through the Civil Resolution Tribunal. The respondent, referred to as “BV,” did not deny sharing the image of AQ in a blog post.

No details about the image in question are provided, but tribunal vice-chair Eric Regehr found it “clearly” met some of the criteria of an intimate image, as outlined in the province’s Intimate Images Protection Act. Namely, he said it showed “AQ engaging in a sexual act, nude or nearly nude, or exposing her genitals, anal region, or breasts.”

But the legislation’s definition of an intimate image is two-fold, Regehr’s decision noted.

The second part of the test is whether someone “had a reasonable expectation of privacy at the time the images were recorded, and also when they were shared.”

The case was complicated by the fact that AQ had shared the image herself on a “major social networking site,” according to Regehr.

“AQ said this post was inadvertent, but I did not accept that evidence. I found that the post was intentional,” the decision said.

Finding AQ had published the image, the tribunal had to weigh whether there was a reasonable expectation of privacy in the case.

AQ argued the harmful impact of the image’s sharing ought to be considered and that “she is the subject of often vicious online harassment from multiple people, including BV, who frequently use the image as part of offensive posts,” according to the decision.

Regehr acknowledged that one of the purposes of the legislation is “to promote individual autonomy over their intimate images with a view to reducing harm.”

But he also found an image does not meet the legal threshold of being “intimate” if there is no reasonable expectation of privacy.

“I find that a reasonable person understands that by posting something broadly on the internet, such as in a publicly viewable social media post, they have functionally lost all control over it. They have offered it for the entire world to see,” he wrote.

“This is an action inconsistent with reasonably expecting privacy in the image in the future. I find that by posting an image in a public online place, an individual forfeits any reasonable expectation of privacy over that image. It does not matter how graphic the image is, how much they later regret posting it, or how upsetting it is to see it resurface.”

AQ’s complaint was dismissed on those grounds.

The tribunal also considered an allegation about a second explicit image, but found no evidence it was shared by BV.

A counterclaim from BV, alleging AQ shared a nude photo of them on social media, was also dismissed, with the tribunal finding insufficient evidence that AQ was the one behind the anonymous social media account that shared it.

The province introduced the IIPA in 2023, the Civil Resolution Tribunal the jurisdiction to address these types of claims to provide an alternative to the more difficult, lengthy and potentially costly options of trying to pursue redress through criminal or civil court.