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Rob Shaw: B.C. online image law is a good step on a long road

Opinion: The law faces years of definition in the courts
New B.C. legislation aims to protect those whose intimate images are shared online without their consent. | Orhan Turan/iStock/Getty Images Plus/Getty Images

B.C. passed into law Thursday protections for people whose intimate images are shared online without their consent. And while it’s a worthwhile step toward empowering victims to get their images removed from the Internet, several hours of debate in the legislature also revealed it will not be simple, or easy, to actually implement the law in the real world.

Attorney General Niki Sharma and Opposition critic Mike de Jong spent several hours walking through the bill over two days this week.

It is supposed to work like this: A person whose images are shared online without permission can apply to B.C.’s Civil Resolution Tribunal (or B.C. Supreme Court) and get an order, which can then be used to legally compel a website or tech company to take the material down. It will also be easier to sue for compensation.

Those intimate images include ones artificially generated (often called deepfakes) as well as material where a person’s face is obscured or hidden.

All admirable in intent.

Yet it was quickly apparent during debate that much is going to be left to the courts and adjudicators to define, on the fly, case by case, until enough precedents and rulings are formed to solidify the backbone of the government initiative.

That may take years. Which makes it hard to determine whether the law, as it stood before the legislature this week, truly hits the mark.

Take, for example, the definition of “consent” — a central part of the new law. How someone gives consent to share an image, whether it be verbal, written, implied, passive, or active, is not addressed.

“It strikes me that what we will see now, eventually, are cases where the respondent says: ‘Hey, for the following reasons, I thought I had consent,’” said de Jong.

“And the attorney has left it to the courts, and I take it that is a purposeful decision on her and the government's part – to leave it to the courts to decide what constitutes appropriate and reasonable consent.”

“The short answer is yes,” replied Sharma. “We intentionally did not include a definition of consent and that the courts would determine based on the facts.”

That lack of specificity played out again and again during questions in the legislature.

One section of the law states that if a person who at one point consented to sharing intimate material with someone (say, during a relationship) later revoked that consent, “the person who distributed the intimate image must make every reasonable effort to make the intimate image unavailable to others.”

But what constitutes a “reasonable effort?”

“What the reasonable standard is will depend, basically, on the facts of the case,” said Sharma.

What happens if someone’s images or videos have been copied onto other websites, message boards, social media platforms, and otherwise sketchy illegal pornography sites, well beyond the reach of the victim or distributor? How then would someone make a “reasonable effort” to get that material taken down?

The law, and the attorney general, don’t know exactly.

Will international tech companies outside of B.C.’s jurisdiction voluntarily comply with our provincial court orders? And what about dubious overseas websites that are already flouting the law with illegal material?

Again, no clear answer.

Sharma, to her credit, admitted B.C. is in uncharted waters.

“The position that we've taken with this legislation, and even the act of stepping forward to create a new system of justice for people in the scenario, is to do what we can within our legal tools and to strengthen our justice system,” she said.

“These orders would give access to monetary penalties and also the processes in the Supreme Court that we have for enforcing orders. I think those are ways that we thought, and we knew, that we could strengthen the tools available to survivors, but there are scenarios that are very difficult.”

“Well, notwithstanding the challenges, I think that is a wonderfully honest response,” replied de Jong, a former attorney general himself.

The Opposition critic in this scenario wasn’t trying to trap the government with his questions or even criticize the legislation itself (the B.C. Liberals voted to support it). But de Jong was trying to lay down as many specifics as possible in the legislative record, so that courts could later refer to the debate when making rulings about the law and what legislators intended.

Courts will be very active in this area in the future.

There’s been an 80-per-cent increase in non-consensual image sharing incidents reported to police in the last five years, according to Statistics Canada. Almost half the distribution was done by an intimate partner or friend, and among youth one-third was done by a casual acquaintance.

If B.C.’s law does accomplish what it set out to do — empower victims to fight back — the first few years are clearly going to be messy, based on this legislation.

Adjudicators and judges will spend much of their time defining what constitutes consent, intention, distribution and removal, all before facing off against tech giants and sleazy pirate sites which may ignore their orders, anyway.

Cases will be litigated, appealed, re-litigated, re-appealed and quite possibly sent back to the legislature for regulatory changes or legislative amendments.

“We want the victims of this type of sexualized violence to know that we are doing everything we can in our justice system to make sure that they have the remedies and tools they need to stop the harm from this type of behaviour,” said Sharma.

The attorney general took to social media just hours after the bill became law to celebrate its passage.

“It brings me comfort and joy to say that this legislation just passed in the legislature!” she posted.

“No one has the right to share your intimate images without consent.

“Thank you again to all the advocates, staff, and British Columbians that helped ensure action against this injustice.”

There is much to admire in B.C.’s bold new step toward justice in this area. But it’s also clear, the province is only at the beginning of an arduous legal journey. It will take many more years, rulings and appeals to truly give victims the clear suite of tools they need to fight back.

Rob Shaw has spent more than 15 years covering B.C. politics, now reporting for CHEK News and writing for Glacier Media. He is the co-author of the national bestselling book A Matter of Confidence, host of the weekly podcast Political Capital, and a regular guest on CBC Radio.

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