Acts and Regulations

2022, c.1 - Intimate Images Unlawful Distribution Act

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Document at 27 April 2022
CHAPTER 2022, c.1
Intimate Images Unlawful Distribution Act
Assented to April 1, 2022
Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:
Definitions
1The following definitions apply in this Act.
“court” means The Court of Queen’s Bench of New Brunswick, and includes a judge of that court.(Cour)
“distribute” means to transmit, publish or otherwise make available.(communiquer)
“Internet intermediary” means an entity that hosts or indexes third party content through an online platform for a commercial purpose.(intermédiaire Internet)
“intimate image” means a visual recording of a person, whether or not the person is identifiable and whether or not the image has been altered in any way, made by any means, in which the person is or is depicted as(image intime)
(a) engaging in a sexual act,
(b) nude or nearly nude, or
(c) exposing their genital organs, anal region, or breasts.
“visual recording” includes a live stream.(enregistrement visuel)
Tort
2A person who distributes or threatens to distribute an intimate image in relation to which a person has a reasonable expectation of privacy commits a tort that is actionable without proof of damage.
Eligibility for relief – reasonable expectation of privacy
3(1)A person may make an application under section 5 or bring an action under section 6, or both, if the person had a reasonable expectation of privacy in relation to an intimate image of themselves
(a) at the time a visual recording was made, and
(b) if a visual recording has been distributed, at the time it was distributed.
3(2)For the purposes of this Act, a person
(a) may have a reasonable expectation of privacy in relation to an altered image, and
(b) does not lose a reasonable expectation of privacy by reason only of the person’s consent to the distribution of an intimate image.
Burden of proof – reasonable expectation of privacy
4(1)In an application under section 5, the respondent has the burden of proving that the applicant did not have a reasonable expectation of privacy in relation to the intimate image at the time the visual recording was made and, if the visual recording has been distributed, at the time it was distributed.
4(2)In an action under section 6, the defendant has the burden of proving that the plaintiff did not have a reasonable expectation of privacy in relation to the intimate image at the time the visual recording was made and, if the visual recording has been distributed, at the time it was distributed.
Application for relief
5(1)If a person who is eligible under subsection 3(1) makes an application to the court for relief, the court may make a declaration or order under subsection (2) if it is satisfied that
(a) the image is an intimate image of the applicant,
(b) the applicant had a reasonable expectation of privacy in relation to the intimate image, and
(c) the respondent distributed the intimate image.
5(2)In respect of an application under subsection (1), the court may do any one or more of the following: 
(a) declare the distribution of the intimate image to have been unlawful;
(b) order the respondent to make every reasonable effort to make the intimate image unavailable to others, including by
(i) destroying all copies of the intimate image in the respondent’s possession or control,
(ii) having the intimate image removed from any platform operated by an Internet intermediary, and
(iii) having the intimate image de-indexed from any search engine;
(c) order an Internet intermediary or any other person to make every reasonable effort to remove or de-index the intimate image;
(d) order the respondent to pay nominal damages to the applicant; and
(e) make any other order the court considers appropriate in the circumstances.
5(3)If a person who is eligible under subsection 3(1) makes an application to the court for relief, the court may make a declaration or order under subsection (4) if it is satisfied that
(a) the image is an intimate image of the applicant,
(b) the applicant had a reasonable expectation of privacy in relation to the intimate image, and
(c) the respondent threatened to distribute the intimate image.
5(4)In respect of an application under subsection (3), the court may do any one or more of the following: 
(a) declare the threat to distribute the intimate image to have been unlawful;
(b) order the respondent to refrain from distributing the intimate image;
(c) order the respondent to make every reasonable effort to make the intimate image unavailable to others, including by destroying all copies of the intimate image in the respondent’s possession or control;
(d) order the respondent to pay nominal damages to the applicant; and
(e) make any other order the court considers appropriate in the circumstances.
Action claiming relief
6(1)If a person who is eligible under subsection 3(1) brings an action claiming relief, the court may make a declaration or order under subsection (2) if it is satisfied that
(a) the image is an intimate image of the plaintiff,
(b) the plaintiff had a reasonable expectation of privacy in relation to the intimate image, and
(c) the defendant distributed the intimate image.
6(2)In respect of an action under subsection (1), the court may do any one or more of the following:  
(a) declare the distribution of the intimate image to have been unlawful;
(b) order the defendant to make every reasonable effort to make the intimate image unavailable to others, including by
(i) destroying all copies of the intimate image in the defendant’s possession or control,
(ii) having the intimate image removed from any platform operated by an Internet intermediary, and
(iii) having the intimate image de-indexed from any search engine;
(c) order an Internet intermediary or any other person to make every reasonable effort to remove or de-index the intimate image;
(d) order the defendant to pay damages, including compensatory, aggravated and punitive damages to the plaintiff; and
(e) make any other order the court considers appropriate in the circumstances.
6(3)If a person who is eligible under subsection 3(1) brings an action claiming relief, the court may make a declaration or order under subsection (4) if it is satisfied that
(a) the image is an intimate image of the plaintiff,
(b) the plaintiff had a reasonable expectation of privacy in relation to the intimate image, and
(c) the defendant threatened to distribute the intimate image.
6(4)In respect of an action under subsection (3), the court may do any one or more of the following: 
(a) declare the threat to distribute the intimate image to have been unlawful;
(b) order the defendant to refrain from distributing the intimate image;
(c) order the defendant to make every reasonable effort to make the intimate image unavailable to others, including by destroying all copies of the intimate image in the defendant’s possession or control;
(d) order the defendant to pay damages, including compensatory, aggravated and punitive damages to the plaintiff; and
(e) make any other order the court considers appropriate in the circumstances.
Defence to an application for relief
7A person is not liable under section 5 if the person proves that the person depicted in the intimate image had consented to the distribution of the intimate image at the time of its distribution and had consented to the extent that the intimate image was distributed by the person.
Defences to an action claiming relief
8(1)A person is not liable under section 6 if the person proves that the distribution of the intimate image was made in any of the following circumstances: 
(a) the person did not intend to distribute the intimate image;
(b) the person had, or honestly and reasonably believed that the person had, the consent to the distribution of the intimate image from the person depicted in the intimate image at the time of its distribution and to the extent that the intimate image was distributed by the person; or
(c) the distribution was made in the public interest and did not extend beyond what was in the public interest.
8(2)The distribution of an intimate image is not made in the public interest solely because the person depicted in the intimate image is a public figure.
Consent revocable
9(1)If a person depicted in an intimate image in relation to which they had a reasonable expectation of privacy consents to the distribution of it, and later revokes that consent and communicates that revocation to a person who distributed the intimate image, the person who distributed the intimate image must make every reasonable effort to make the intimate image unavailable to others.
9(2)If a person does not make every reasonable effort under subsection (1) after a person has revoked their consent and communicated that revocation, the person who has revoked their consent may make an application under section 5 or bring an action under section 6, or both.
9(3)A person who does not make every reasonable effort under subsection (1) is liable for damages for any injury resulting from the failure to make that effort.
Publication ban
10In an application under section 5 or an action under section 6, the court shall order a ban on the publication of the name of the applicant or the plaintiff, as the case may be, or any other information likely to identify the applicant or plaintiff, unless the applicant or plaintiff requests that there not be a publication ban.
Internet intermediaries – immunity
11(1)No application or action may be brought against an Internet intermediary if the Internet intermediary has taken reasonable steps to address unlawful distribution of intimate images in the use of its services.
11(2)Nothing in this section limits the court’s authority under subsection 5(2) or 6(2) to make an order against an Internet intermediary or other person.
Rights and remedies not limited
12The rights and remedies under this Act are in addition to any other right or remedy that may be available.
N.B. This Act is consolidated to April 1, 2022.