Revenge porn: The consequences of publishing naked photos of your ex

You’re angry, hurt and upset. You want to get back at your ex. You think back to those photos on your phone. Sharing them with a Facebook Messenger group of friends or publishing them on Reddit feels like a good idea and a way to get even.

Or perhaps you’ve learned there are intimate photos of you being circulated by a jaded ex. You feel like there are no legal remedies to make the nightmare end.

In both cases, think again.

So-called revenge porn involves the distribution of sexually explicit images or videos without the subject’s knowledge or consent, typically in anger or frustration over a broken relationship. It’s also an act that can come with severe civil and criminal consequences for the person publishing the content.

The potential civil consequences became apparent last year in a groundbreaking case in Toronto when a judge recognized a new privacy tort for the first time in Canada called “publication of embarrassing private facts.”

Damages awarded

In early 2016, an Ontario Superior Court judge awarded a victim of revenge porn $100,000 in damages, plus her legal costs, after her ex-boyfriend posted an intimate video of her on a pornography website without her knowledge or consent. The Court also ordered the ex-boyfriend to destroy all related images or recordings in his possession, power or control.

In the civil court system, a victim could bring action against their ex for any of the following torts:

• Breach of confidence;
• Intentional infliction of mental distress; and
• Invasion of privacy (the tort of “publication of embarrassing private facts” falls under this larger category).

The Ontario Superior Court decision was set aside recently to allow the ex-boyfriend to file a defence, so damages and liability for this particular victim will have to be determined again. However, the Court’s application of these torts in the “revenge porn” context still stands.

Unfortunately, incidents of revenge porn continue to make the news. Earlier this year, a University of Moncton student filed a complaint with police after approximately 10,000 emails were sent to other students and staff at the university, containing a sexually explicit photo of the student as well as a link to a video.

More recently, social media giant Facebook said it’s deploying new tools aimed at keeping revenge porn off its platforms after facing lawsuits by victims who accused the social media giant of failing to stop the spread of private, intimate images.

Protecting yourself

If you’ve recently separated from a former partner who has intimate photos of you, consider attempting to deal with these photos as part of the other legal issues arising from your separation.

For example, you may wish to include specific provisions that provide for all such material to be returned or destroyed, specifically restrict the copying or distribution of such material, and expressly state that significant damages shall be payable in the event that these terms are breached.

A trusted legal advisor can assist you in protecting yourself and can help revenge porn victims understand their options. The Family Law Group at Nelligan O’Brien Payne has the experience and compassion to find the best resolution.

It all starts with a conversation.

Erin Kelley is an associate lawyer at Nelligan O’Brien Payne LLP, and a member of our Family Law and Wills and Estates practice groups. Erin received her J.D. from the University of Ottawa. During law school, she was an associate editor with the Ottawa Law Review, and also helped inform youth about their legal rights through organizations such as the Ontario Justice Education Network. To contact Erin call 613-231-8350 or email erin.kelley@nelligan.ca.Visit nelligan.ca for more information.