The following article outlines the scope of Québec’s new bill and addresses the challenges businesses might face regarding its application.
On December 4th, 2024, Québec’s Bill 73 titled “An Act to counter non-consensual sharing of intimate images and to improve protection and support in civil matters for persons who are victims of violence” (the "Act") came into force.
The Bill establishes a procedure that can be used by individuals to prevent or put a stop in an urgent, expedient manner, to the non-consensual sharing of an intimate image. It was adopted in the hopes of safeguarding Quebecers’ rights and privacy, as well as the preservation of their dignity, honour and reputation. It specifically recognizes that the sharing of intimate images may cause irreparable injury to individuals due to the risk of the image being spread by technological means. Thus, the Bill allows individuals to obtain court orders to prevent others from sharing these images.
The Scope of Bill 73: What Qualifies as an “Intimate Image” and What Activities are Targeted?
According to section 2 of the Bill, an “intimate image” is any image that shows or represents a person who is nude or partially nude, whereby an intimate area of their body is exposed. An intimate image is also one that captures a person engaging in explicit sexual activity where the person would have reasonably expected their privacy to be respected.
An “image” includes pictures, as well as video and audio recordings and “created” images that appear to represent a person. This could include AI generated still images and video, animated images, artistic drawings, deep fakes, and other false or manufactured images.
When it comes to the sharing of these images, all activities that allow the publishing, broadcasting, distributing, transmitting, selling, communicating, making available or advertising of intimate images fall within the scope of the law.
The law specifies that the above activities only become problematic when a person revokes their consent to the sharing of the images and the sharing persists. It also specifies that consent may be revoked at any time, except when it is given under a commercial or artistic contract that contains a provision prohibiting the person from revoking their consent.
Application of Bill 73: How Can Court Orders Be Sought and What Can the Courts Order?
An application for an order under this Bill can be brought by the person who is represented in the image or, with the consent of the person, by another person or body. The Bill also states that the spouse or a relative of a person who is deceased can file an application in the name of the deceased. Minors between 14 and 17 years old can file the application themselves or can give consent to another person to do so on their behalf. Applications for minors under the age of 14 will always need to be brought by an adult.
All hearings commenced under the Bill are held in-camera (i.e. the public does not have the ability to attend these hearings).
To be granted an order, a person must declare the following:
- that they are represented in the image or that they received the consent of the person represented in the image to file an application on their behalf;
- that the image is being shared or that someone is threatening to share it without the consent of the person represented in the image; and
- that they are applying for the order prescribed by Bill 73.
The Court of Québec has the power to grant an order whereby any person who possesses or has control of the image must:
- abstain from sharing the image;
- cease any sharing of the image;
- destroy the image;
- de-index any hyperlink allowing access to the image; and/or
- provide the court any information that is necessary or useful in stopping the sharing of the image.
Notice of the application does not have to be provided to the defendant, and an order can be issued against a person even if the person’s identity is unknown to the court.
Within 30 days of notification of a court order, a person to whom the order pertains can request that the order be nullified on grounds that:
- the person represented in the image had no reasonable expectation of privacy in the circumstances where the image was created, taken, recorded or shared (in particular, because the person had freely consented or the image was taken in the context of a professional or artistic contractual arrangement); or
- the image serves a legitimate public purpose without exceeding what is reasonable.
Compliance: What This Means for Corporations or “Internet Intermediaries”
Bill 73 provides that orders may be issued against all "persons" without defining this term. Internet intermediaries are subject to the Act and therefore could have enforcement orders issued against them, namely with respect to de-indexing and content removal. As well, given the nature of an order that may be issued pursuant to s. 6 of the Bill, it is possible that these internet intermediaries could be subject to an order to take down or destroy images that are found on their servers.
It is worth noting that a corporation that neglects or refuses to comply with an order is liable for fines of between $5,000 to $50,000 per day (in addition to contempt of court and possible imprisonment), and fines are doubled for subsequent offences.
Additionally, under the Bill, judges have the ability to issue incidental orders requesting that the internet intermediary identify individuals who are sharing images and/or ensure that images are not shared or are effectively destroyed.
Finally, corporations and internet intermediaries must note that applications for orders are heard and decided on an urgent basis. This may introduce a degree of unpredictability in terms of the speed and volume at which intermediaries receive requests for compliance with court orders. It is of the utmost importance that internet intermediaries stay up to date with existing orders, given that officers, directors, and representatives who consent to non-compliance with a court order are held personally liable.
Conclusion
Bill 73 has significant implications for individuals whose intimate images are shared without their consent and who seek to enforce their privacy rights, as well as for third parties who may be ordered to delete or de-index images.
The most significant of challenges may arise with regard to AI tools, which can not only be used to create intimate images, but also to access images created by third parties. It is unclear the extent to which courts may issue orders that attempt to constrain the use of AI systems.
