Canada’s Expanding Revenge Porn Laws Could Threaten Journalistic Freedom

The only thing worse than revenge porn would be bad revenge porn laws.

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May 12 2016, 1:00pm

Image: Flicker/m01229

In this digital age, one intimate image can ruin your life.

Websites trafficking in pornographic images that have been uploaded without the subject's consent are forcing the legal world to scramble and update the law. In Canada, so-called "revenge porn" was criminalized in 2014. This year, an Ontario judge awarded $141,708 in damages to a "Jane Doe" whose private video was uploaded to the internet in 2012 by a jilted ex. For the first time, this extended a privacy tort—a civil law that allows victims to seek compensation in addition to criminal charges—to cover revenge porn. Now, victims of revenge porn can seek damages in Ontario.

But it's not called the revenge porn tort. It's actually referred to as the tort of "publication of embarrassing private facts," which may not be videos or images of a sexual nature.

This new tort, ostensibly regarding revenge porn, is actually about a lot more than compromising videos. Experts believe that it could have wide-ranging implications for journalists and the media, and may allow people to sue over non-sexual images and unflattering words, even if they're the undeniable truth.

"The bottom line is you can't ruin people's lives"

"The tort is going to be broader than images," said Donna Wilson, the lawyer who won Jane Doe's case, at a panel discussion on revenge porn law at the International Association of Privacy Professionals (IAPP) conference in Toronto on Wednesday. "It's the publication of embarrassing or private facts about a person that would be highly offensive to a reasonable person and are not in the public interest. That extends to tabloids."

By way of a relatable example, said digital privacy lawyer David Fraser, we might consider recently deceased Toronto mayor Rob Ford. If someone were to record an arguably private act—say, smoking crack—and a journalist published it, then Ford could have conceivably sued under the revenge porn tort. But, Fraser said, the natural defence would be that the act is in the public interest due to Ford's one-time political importance.

"It's not a law made out of entirely new cloth. It's actually extending existing principles," Fraser said. "The question of whether the information is in the public interest will be at issue."

The extended tort for revenge porn doesn't cover these types of things right now. According to Sam Pfeifle of the IAPP, who moderated the discussion with Wilson at the conference, a new case would have to be brought before a Canadian court that argues non-sexual images and even words in the press should be covered by the tort.

If that happens, this may create a "chilling effect" on certain types of journalism, Wilson conceded, but Pfeifle jumped in to add that such an effect might actually be positive, since it would be a "chilling effect" only on what he described as being poor journalism.

"In this case, you're not ruining their reputation with untruth. It's that you're ruining their life with the truth," Wilson said. "It's filling a gap. You can't always hang your hat on defamation or copyright."

According to Wilson, "the bottom line is you can't ruin people's lives."

Many journalists would probably agree that a chilling effect of any kind is undesirable and even dangerous. Of course intimate images should not be published without the subject's consent. Of course no self-respecting journalist should publish salacious details, even if they're true, if they're of no consequence to anybody besides the person to which they belong.

And of course, revenge porn itself is an abhorrent practice. Victims desperately require and deserve proper legal recourse.

But as Canada's laws regarding revenge porn continue to be hashed out in the courts, we should be careful not to accidentally hinder a democratic society's most precious institution.

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