B.C. has jurisdiction in intimate image case even though video was made out of province: tribunal

Hands type on a keyboard in North Vancouver, B.C., on Wednesday, December, 19, 2012. THE CANADIAN PRESS/Jonathan Hayward

A man was able to seek recourse under B.C.'s Intimate Images Protection Act even though the video shared without his consent was filmed in and posted online from a different province.

The Civil Resolution Tribunal published its decision in the case last week, explaining how it determined the matter of jurisdiction. Both parties are referred to only by their initials – J.G. and R.C.

The video showed the two men having sex and J.G. brought the complaint to the tribunal after he saw that R.C. had shared it on his OnlyFans and Just For Fans accounts as well as on Twitter where one of his accounts has 100,000 followers. R.C. admitted to sharing the video and did not object to taking it offline or paying damages – although he did think the claimed amount of $5,000 was too high.

Tribunal member Micah Carmody noted that the first issue to decide was whether the provincial tribunal had jurisdiction.

"The respondent lives in Canada but outside of B.C. The video in question was made in the respondent’s home province and shared from there," the decision said.

"Before hearing an application, a court or tribunal must have 'territorial competence' to do so. This means there must be some connection between the application and the court or tribunal’s location."

When a tort or "legal wrong" happens online, establishing jurisdiction is not as straightforward as in cases where something happens in a "fixed physical location," Carmody noted. However, he explained why he found that in this case, the connection to the province was established.

"The applicant lives in B.C. and it was there that he viewed the image online and became aware that the respondent had distributed his image. So, I find that the image was distributed in B.C and the applicant suffered the alleged harm while in B.C.," he wrote.

The decision is only the second one issued by the CRT since new B.C. legislation came into effect. While the process of seeking recourse through the tribunal is faster, less costly and easier than pursuing a criminal or civil case – damages are capped at $5,000. Carmody notes that the courts have awarded damages ranging from $45,000 to $85,000 in cases where people's intimate images were shared without their consent.

Carmody had "no difficulty" awarding J.G. the $5,000 in compensation that he sought, explaining the purpose of damages in these cases.

"Any non-consensual disclosure of an intimate image is a serious violation of a person’s privacy. Non-pecuniary damages address this harm by providing solace to the person’s pain, suffering, and loss of enjoyment of life, and vindicating the plaintiff’s dignity and personal autonomy," the decision said.

"Here, there is no way to determine here how many times the applicant’s video was viewed, downloaded, copied, or shared. As the cases point out, even if the images are removed, the applicant can never be certain that they will not resurface."

R.C. was also ordered to stop distributing the images and to take them offline. An order was also made requiring "internet intermediaries" to remove, delete and de-index the images.

B.C.'s legislation allows for further penalties in cases where an individual or company does not comply with these orders. Individuals can be fined $500 a day to a maximum of $10,000 and companies can be fined $5,000 per day up to a maximum of $100,000.