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“Sexting” and the Law
March 1, 2018
New research from the University of Calgary reveals that sexting is on the rise amongst teenagers aged 12 – 17 years old.
Sexting is generally defined as sharing sexually intimate content via electronic means such as text messaging, email and social media for sexual purposes. Sexting includes sharing nude, semi-nude or sexually suggestive photos, videos or audio recordings. For adults consensual sexting is legal. But even adults ought to be alert to the potential risk of sharing sensitive or intimate material with others.
The publication of someone’s intimate and personal images or recordings can have unfortunate consequences for one’s reputation, career or social life. For example, Manitoba’s Associate Chief Justice Lori Douglas (as she was, then) was the victim of a scandal after her husband posted private and intimate photos of her online without her knowledge. Even if you have complete faith in the person with whom you are sharing intimate photos, electronic transfers are always at risk of being hacked. Adults should take steps to protect their private and intimate information online.
The Protecting Canadians from Online Crime Act R.S., c. C-46 provides Canadians with some protection. That act came into effect last month and makes it a criminal offense to knowingly publish or share intimate images of a person without that person’s consent. Individuals found guilty under this new provision could be sentenced to up to 5 years in prison.
In addition to criminal liability, individuals who post or share intimate images risk exposure to civil liability. For example, the newer tort of “inclusion upon seclusion,” recognized in Jones v. Tsige, 2012 ONCA 32, provides plaintiffs with the ability to recover damages in cases of “public disclosure of private facts.” Intimate Image Protection Act, CCSM, c. I87, also provides remedies for people who have been similarly victimized in Manitoba.
While the impact of the publication of sensitive material can harm adults the effect can have devastating and dramatic consequences for teens. The above mentioned U of C study found that 12% of teens have forwarded a sext without the consent of the subject of the sext. It also found that girls feel more pressure than boys to sext and feel that they also face greater ramifications for sexting. 15 year old Amanda Todd tragically ended her own life in October 2012 after a sexual predator used her intimate photos to bully and blackmail her. While Amanda’s case was further aggravated by the age of her abuser (38 year old Aydin Coban), her story highlights the extreme toxic stress young people suffer when their intimate information is at risk.
Young people, persons under the age of 18, who sext or share sexts may also be criminally charged with making or distributing child pornography. In Canada, dozens of teens have been charged for sharing sexts within their peer groups. Child pornography can include images, video or audio recordings and even text if the dominate characteristic of the text is “the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be a [criminal offense].” Depending on the age of the accused, teens participating in sexting may also find themselves facing charges for “luring a child” under section 172.1 of the Criminal Code RSC 1985, c., C-46.
DBB recommends that parents have candid discussions with their children about electronic safety and the risks, legal and otherwise, of sexting. He further suggests that parents keep the conversations with their kids non-judgemental and directed at providing kids with the confidence they need to resist pressure to do things they may not want to do. Non-judgmental and open communication can also help kids turn to their parents earlier if they do end up suffering from cyberbullying, harassment or being victimized from the misuse of their intimate information.
Anyone who finds that their intimate information, or their children’s intimate information, is being used without their permission should seek out legal counsel to discuss their potential remedies in addition to the local authorities, if applicable.