BRIEF TO THE
Standing Committee on Public Safety and Emergency Preparedness
41ST Parliament, 2nd Session
An Act to Amend the Criminal Code, the Canada Evidence Act, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act (Protecting Canadians from Online Crime Act)
By the Canadian Criminal Justice Association
Background of Canadian Criminal Justice Association
The Canadian Criminal Justice Association (CCJA) welcomes the opportunity to present this brief to the Standing Committee on Justice and Human Rights regarding Bill C-13, Protecting Canadians from Online Crime Act.
The CCJA is one of the longest serving non-governmental organizations of professionals and individuals interested in criminal justice issues in Canada, having begun its work in 1919 and having testified before this committee on numerous occasions. Our association consists of nearly 700 members and publishes the Canadian Journal of Criminology and Criminal Justice, the Justice Report, the Justice Directory of Services, and the Directory of Services for Victims of Crime. We also organize the “Canadian Congress on Criminal Justice” every two years.
History and Relevant Issues Pertaining to the Legislation
The Protecting Canadians from Online Crime Act contains two philosophically and practically different topics: first, the issue of non-consensual distribution of intimate images, and second, outdated language in several Acts that limits police investigations involving the Internet and other recent technological developments. The CCJA agrees with the assessment of the opposition MPs and recommends that this bill be separated into two bills: one to deal with the non-consensual distribution of intimate images, and another to update lawful access to evidence of crime occurring on (or involving) the Internet and new technology. These two parts require fundamentally different discussions and, as such, cannot fairly be considered as one issue. Therefore, this brief will first consider the criminalization of the non-consensual distribution of intimate images, followed by a response to the latter sections of the bill pertaining to lawful access.
Non-Consensual Distribution of Intimate Images
The first two pages of Bill C-13 introduce a new Criminal Code offense, section 162.1, to protect adults from the non-consensual sharing and distribution of intimate images, an issue referred to commonly as ‘revenge porn’. This new offense would be punishable by up to five years in prison.
The CCJA does not contest the need to introduce or amend a legal mechanism to protect adults from the non-consensual distribution of their intimate image(s). Existing sections of the Criminal Code such as sections 162 (voyeurism), 163 (obscene publication), 264 (criminal harassment), 346 (extortion), and 298-300 (defamatory libel) leave a ‘gap’ which finds many victims of ‘revenge porn’ without legal recourse.
However, the CCJA does not agree that this gap must be managed through the Criminal Code. This problem, like many others, can be addressed without the introduction of a new criminal offense, which would feasibly lead to an increase in the number of people serving time in Canadian prisons and jails. The CCJA has historically held the position that Canada should actively work to decrease Canada’s prison population, not increase it, and as such we firmly hold that ‘revenge porn’ should be dealt with outside of the criminal justice system.
Some legal scholars have presented alternatives to new criminal legislation that would address the issue of non-consensual distribution of intimate images, and the CCJA finds these promising. Derek Bambauer (2014), a Professor at Law at the University of Arizona, proposes that the non-consensual distribution of intimate images is best served through copyright law rather than criminal law; not only would this avoid directing more people toward the prison system, a copyright law approach would refrain from burdening the criminal justice system while also providing more timely relief to victims. Jonathon W. Penney (2013), a Professor of Law at Dalhousie University, supports exploring the copyright law potential in Canadian courts, along with investigating potential legislative creations or amendments that could modify privacy torts to better cover ‘revenge porn’. Danielle Citron (2010), a Professor of Law at the University of Maryland, has shown that police often pay little attention to online crime unless it becomes high profile, further reinforcing the notion that the criminal justice system may not be the right place to manage the non-consensual distribution of intimate images.
Amending the copyright law to apply to the non-consensual distribution of intimate images could involve altering legal conceptions of ‘copyright’ to give property rights to the subject of the image, rather than only the producer of the image. If copyright law were amended to allow the subjects of photographs to protest their distribution and use (in the absence of a contractual transfer of ownership), victims of ‘revenge porn’ could be given legal recourse to prevent further distribution without consent, remove the offending image(s) from web pages and other locations where they are being displayed, and pursue financial reimbursement to atone for financial, social, or other repercussions of the image(s)’ distribution. Pursuing an alternative to the Criminal Code would place more control into the hands of the victim while also providing a quicker process to have photographs taken out of the public sphere.
Accordingly, the CCJA recommends that the Canadian government consider non-criminal methods to legislate against the non-consensual distribution of intimate images, alternative routes that would not add to the burden on our overcrowded prison system while also providing a more effective and efficient approach to preventing this activity and pursuing justice for victims.
Updating Police Powers
The CCJA recommends that the implications of the amendments and additions to update lawful access be investigated thoroughly and apart from the issue of non-consensual distribution of intimate images. While in large part these amendments and additions are necessary, and only introduce the required language to update existing legislation (such as adding ‘computer’ to ‘data’, expanding communications to ‘telecommunications’), the CCJA is concerned with the implications of the addition of section 487.0195.
Section 487.0195 states that a peace or police officer needs no preservation demand, preservation order, or production order to ask a person to voluntarily preserve and/or disclose data that they are not otherwise prohibited from preserving and/or disclosing. This section further protects this person from criminal or civil liability for voluntarily giving this data to police. The CCJA is concerned that criminal and civil immunity will motivate persons, entities, and institutions (including telecommunications companies) to preserve and disclose the data of others out of self-interest, effectively damaging the relationship(s) between Canadians and the many different people, companies, and services they interact with online every day.
The CCJA recommends that section 487.0195(2) be struck from the bill, and that questions of civil and criminal immunity be dealt with on a case-by-case basis with the appropriate legal parties currently capable of extending these types of immunity. Removing blanket civil and criminal immunity would mitigate the likelihood that people, entities, and institutions would collect and preserve the data of Canadians beyond what is needed for the regular operation of Internet services. Further, this would leave options to pursue civil or criminal recourse for third parties who may be in some way responsible for the illegal act in question (such as not removing harmful material in a timely manner, not responding to complaints appropriately, or otherwise contributing to the commission of an offence online).
The CCJA recommends that the Protecting Canadians from Online Crime Act be separated thematically so that the non-consensual distribution of intimate images can be debated and considered separate from the updates to police powers. Further, the CCJA recommends that the Government of Canada investigate non-criminal routes to protecting Canadians from ‘revenge porn’, paying particular attention to the promising areas of copyright law and privacy torts. Lastly, the CCJA recommends that section 487.0195(2), the civil and criminal immunity given to parties who voluntarily disclose data to the police, be struck from the bill in order to protect average Canadians from having their data collected and preserved more than is necessary for the delivery of regular Internet services.
References and Supporting Documents
Bambauer, Derek E. (2014). Exposed. Minnesota Law Review, 98.
Citron, Danielle K. (2010). Civil Rights in the Information Age. In Martha Nussbaum & Saul Levmore, eds., The Offensive Internet: Speech, Privacy, and Reputation. Harvard University Press: Cambridge, MA.
Penney, Jonathon W. (November, 2013). Deleting revenge porn. Policy Options. Retrieved Online, February 17th 2014, from: http://irpp.org/en/po/vive-montreal-libre/deleting-revenge-porn/
Canada is not the first to consider criminalizing the non-consensual distribution of intimate images. New Jersey’s existing invasion of privacy laws encompass this crime; California recently passed a law expressly focused on ‘revenge porn’, and 13 other states are working on similar bills. In California, the maximum time served for this offense is six months, a stark contrast to Canada’s proposed maximum of five years.