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C.C.S.M. c. I87
The Intimate Image Protection Act
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(Assented to November 5, 2015)
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
INTERPRETATION AND ADMINISTRATION
The following definitions apply in this Act.
"authorized agency" means an agency, organization or other entity that has been designated by regulation under section 4. (« organisme autorisé »)
"court" means the Court of Queen's Bench. (« tribunal »)
"department" means the department of government over which the minister presides. (« ministère »)
"director" means the person designated as director under subsection 2(1). (« directeur »)
"intimate image" means a visual recording of a person made by any means, including a photograph, film or video recording,
(a) in which the person depicted in the image
(i) is nude, or is exposing his or her genital organs or anal region or her breasts, or
(ii) is engaged in explicit sexual activity;
(b) which was recorded in circumstances that gave rise to a reasonable expectation of privacy in respect of the image; and
(c) if the image has been distributed, in which the person depicted in the image retained a reasonable expectation of privacy at the time it was distributed. (« image intime »)
"minister" means the minister appointed by the Lieutenant Governor in Council to administer this Act. (« ministre »)
"personal information" means personal information as defined in The Freedom of Information and Protection of Privacy Act. (« renseignements personnels »)
"request for assistance" means a request made under section 6. (« demande d'aide »)
For the purpose of this Act, a person distributes an intimate image if he or she knowingly publishes, transmits, sells, advertises or otherwise distributes or makes the image available to a person other than the person depicted in the image.
The minister must designate an employee of the department as director for the purposes of this Act.
The director is responsible for
(a) ensuring that appropriate information and resources are available to assist persons who have had an intimate image distributed without consent or who believe that their intimate image is about to be distributed without consent;
(b) overseeing services provided under this Act by an authorized agency; and
(c) making information available to the public respecting the non-consensual distribution of intimate images.
SUPPORT FOR PERSONS CONCERNED WITH INTIMATE IMAGES
The department must make appropriate information or resources available on request to assist persons who have had an intimate image distributed without consent or who believe that their intimate image is about to be distributed without consent.
Without restricting the generality of subsection (1), the department may
(a) provide information or assistance to enable persons to have their intimate images returned, destroyed, deleted or removed from the Internet or any other place where they may be viewed by others;
(b) provide information or assistance that may facilitate the resolution of a dispute with a person who may be in possession of an intimate image or who may have distributed an intimate image, including information respecting mediation or dispute resolution in appropriate circumstances; and
(c) provide information about legal remedies and protections available when there has been a non-consensual distribution of an intimate image or when a person believes that an intimate image is about to be distributed without consent.
The minister may, by regulation, designate one or more agencies, organizations or other entities to
(a) receive requests for assistance; and
(b) provide some or all of the supports set out in section 3 to persons who have had an intimate image distributed without consent or who believe that their intimate image is about to be distributed without consent.
A regulation under subsection (1) must address the following:
(a) the agency, organization or other entity that is authorized to receive requests for assistance and provide supports set out in section 3;
(b) the supports that the agency, organization or other entity is authorized to provide;
(c) the collection, use, access, disclosure, protection, return and destruction of personal information by the agency, organization or other entity.
The minister may designate an agency, organization or other entity by regulation under subsection (1) if he or she is satisfied that it has experience or expertise in addressing sexual exploitation or victimization or providing services to victims of unlawful conduct.
The minister may enter into an agreement with an authorized agency.
The agreement may address one or more of the following:
(a) the handling of requests for assistance and the manner in which supports are to be provided by the agency;
(b) the obligation of the agency to report to the director and provide information to the director on request;
(c) termination of the agreement;
(d) any other matter that the minister considers necessary.
A person whose intimate image has been distributed without consent or who believes that an intimate image is about to be distributed without consent may make a request for assistance to an authorized agency.
If an authorized agency has not yet been designated by regulation, a request for assistance may be made to the director.
An authorized agency may provide such supports set out in section 3 as it considers appropriate in order to attempt to reach a resolution of the concerns respecting an intimate image set out in the request for assistance.
The provision of support and the specific supports provided in response to a request for assistance is within the discretion of the authorized agency.
An authorized agency may refuse to take any action in response to a request for assistance if the request deals with a matter outside the scope of this Act or if the person making the request is acting unreasonably.
If the identity of a person who is in possession of an intimate image is known and the authorized agency has reason to believe that the person has distributed the image without consent or is about to distribute the image without consent, the agency may send a written notice to that person.
A notice under subsection (1) may include
(a) notice that the person depicted in the intimate image does not consent to the distribution of the image; and
(b) a summary of the legal consequences that may result from the non-consensual distribution of an intimate image.
In addition to any other supports provided, an authorized agency may assist a person who made a request for assistance to make a complaint to a police service.
If an authorized agency has not been designated by regulation, the director may take any of the actions set out in sections 7 to 9 or arrange for third parties to take those actions.
TORT OF NON-CONSENSUAL DISTRIBUTION OF INTIMATE IMAGES
A person who distributes an intimate image of another person knowing that the person depicted in the image did not consent to the distribution, or being reckless as to whether or not that person consented to the distribution, commits a tort against that other person.
An action for the non-consensual distribution of an intimate image may be brought without proof of damage.
In an action for the non-consensual distribution of an intimate image, the person depicted in the image does not lose his or her expectation of privacy in respect of the image if he or she
(a) consented to another person recording the image; or
(b) provided the image to another person;
in circumstances where that other person knew or ought reasonably to have known that the image was not to be distributed to any other person.
It is a defence to an action for the non-consensual distribution of an intimate image if the distribution of the intimate image is in the public interest and does not extend beyond what is in the public interest.
In an action for the non-consensual distribution of an intimate image, the court may
(a) award damages to the plaintiff, including general, special, aggravated and punitive damages;
(b) order the defendant to account to the plaintiff for any profits that have accrued to the defendant as a result of the non-consensual distribution of the intimate image;
(c) issue an injunction on such terms and with such conditions that the court determines appropriate in the circumstances; and
(d) make any other order that the court considers just and reasonable in the circumstances.
In awarding damages in an action for the non-consensual distribution of an intimate image, the court must not have regard to any order made under clause (1)(b).
In an action for the non-consensual distribution of an intimate image, the court may make an order prohibiting the publication of the name of any party to the action or any information likely to identify a party if it considers the making of the order to be in the interests of justice.
A right of action under this Act is in addition to, and does not affect, any other right of action or remedy available to a person under another Act.
REVIEW, C.C.S.M. REFERENCE AND COMING INTO FORCE
Within five years after this Act comes into force, the minister must undertake a comprehensive review of it and must, within one year after the review is undertaken or within such further time as the Legislative Assembly may allow, submit a report on the review to the Assembly.
This Act may be referred to as chapter I87 of the Continuing Consolidation of Statutes of Manitoba.
This Act comes into force on a day to be fixed by proclamation.
NOTE: S.M. 2015, c. 42 came into force by proclamation on January 15, 2016.
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