You end your relationship and your ex, having kept intimate photos of you, decides to publish them. You have not consented to the dissemination of these images, which were intended exclusively for him.
This is an infringement of your rights that can give rise to civil
lawsuit
, and even criminal sanction. Me Lambert explains your rights, the steps you can take and the situations in which you can bring an action.
N.B.: In this article, we will use the case of your ex, a man, who publishes photos of you, a woman, since this is the most frequent case. But this is just one example used to simplify the reading of the text; this kind of thing can happen to anyone, in various situations.
Your rights following the publication of an erotic photo
You may have heard that your ex has the right to freedom of speech, but that doesn’t mean he can post anything, without consequences. Indeed, his rights and freedoms in this regard end where yours begin.
Right to privacy and right to image
First, even if the photo is not intimate, you have the right to privacy, which includes the right to the image. The Court ruled that photos of you cannot be published and disseminated without your consent unless you are in one of the following situations:
- You are a public figure, such as a famous singer or a well-known politician;
- Your role in the photo is secondary, that is, you are not the main object of the photo but one element among many others, even if you are recognizable. This is the case of a photo of the audience taken at a concert you attend with hundreds of other fans, or a photo of the Champs Élysées where you are present in the background;
- You were unknown, but play an important role in a matter of public interest. For example, you are a witness in a big trial.
Ultimately, it is the Tribunal that will make its decision, taking into account your right to public image and the public interest. On the other hand, a photo of a sexual nature, probably taken in a private place and for which your ex has not obtained your permission to broadcast it, would not fit into the exceptions, even if you are a celebrity.
Right to reputation
The right to respect for reputation is guaranteed by articles 3 and 35 of the Civil Code of Québec, as well as by article 4 of the Charter of Human Rights and Freedoms. This is not to say that no one has the right to post things about you just because they bother you; the publication must be defamation.
Right to security
Posting a sexual image can have an impact on your safety such as sexual harassment and bullying, which in turn can have tragic consequences. You will no doubt remember the case of Amanda Todd, a young girl who, after having a photo of her breasts posted on the Internet, suffered bullying, physical and psychological aggression, and ended up committing suicide.
Civil liability
There is no specific remedy for reputational damage, but you can take legal action under the general civil liability regime. You will have to prove the existence of fault and damage, as well as the causal link between the two.
The fault
First, you must prove that the posting was made by the person you are suing (in this case, your ex) and that it constitutes misconduct.
You may have been told that it’s your fault and that you shouldn’t have taken these kinds of photos if you wanted them to remain private. However, within the meaning of the law, it is not your fault if you did not consent – explicitly or tacitly – to the publication of these photos.
Since the publication of an intimate photo without consent is a violation of sections 162, 162.1 and 163 of the Criminal Code, doing so would constitute wrongful conduct within the meaning of article 1457 of the Civil Code of Québec.
Harm
In addition to proving fault, you will need to demonstrate the harm you have suffered, which may include, but is not limited to:
- Damage to your reputation;
- Moral prejudice;
- Medical expenses (e.g. psychologist);
- The amount spent to have the photo removed from the Internet;
- Various disorders and disadvantages.
Since this kind of harm can be difficult to demonstrate, we advise you to keep evidence – such as copies of messages and conversations – and/or take note of any incident that results from the dissemination of the image (the time, date and description of the event).
Causation
For your civil action to succeed, you must demonstrate the existence of the third element of civil liability: the causal link between fault and damage.
For example, you may have to prove that your expenses at the psychologist are the result of anxiety disorders which, in turn, were directly caused by the dissemination of an intimate photo of you by your ex.
Remedies available before the General Court
If a photo of you of a sexual nature has been published without your consent and you want to sue the person responsible in civil proceedings, do not hesitate to contact us for an analysis of your chances of success. However, for your safety and well-being, do not send us intimate photos or videos; they are not necessary for a preliminary analysis of your file.
In addition to filing a civil lawsuit, you can, for example, go to your ex or the site where the image was posted and request that the photo be removed. If you’re not sure how to do this, please check out Help Me for help.
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