Perhaps you are aware—Taylor Swift deepfakes have just surfaced on January 27, 2024, and they were viewed millions of times all over social media before they were taken down. And this is just the most recent example of what the dangerous technology can do. British Columbia has recently proposed a solution to the problem. This article explores the Intimate Images Protection Act and recently released Intimate Images Protection Regulation.
What are deepfakes?
Celebrities. Politicians. Women (99% of the deepfakes use women to create pornography). These are the typical victims of bad actors who use deepfake technologies for malevolent purposes.
Just recently, Taylor Swift fell victim to it. Deepfakes are manipulated media files that depict a false image or video of a person.
What is the purpose of deepfakes?
By adding machine learning and new automatic computer graphics to the mix, deepfake technologies can synthesize images more rapidly and expedite a process that has been around for decades.
Essentially, the technology can easily place anyone into a photo or video and make that person appear to do things that they never did.
While there are some honest attempts to use the technology for good (think Paul Walker and the Fast and the Furious 7), most times the goal is to use women to create pornography or to use politicians to create chaos (especially before elections).
What is the recent development in British Columbia?
On March 30, 2023, Bill 12, the Intimate Images Protection Act, received Royal Assent, and came into force by regulation of the Lieutenant Governor in Council effective January 29, 2024. Also effective January 29, 2024, the Intimate Images Protection Regulation was made.
1. Intimate Images Protection Act
This Act is a comprehensive set of protections, where issues like reasonable expectation of privacy, distribution without consent, and threat of distribution are discussed. Individuals may make applications for an expedited intimate image protection order and obtain relief such as ordering the person who distributed the intimate image to delete or destroy all copies of the intimate image in the person’s possession or control, and make every reasonable effort to make the intimate image unavailable to others, including by having the intimate image removed from any platform operated by an internet intermediary and from any other electronic form of application, software, database and communication method, and having the intimate image de-indexed from any search engine.
There are also other types of relief that can be obtained by the applicant in such an application. For example, the Civil Resolution Tribunal or Supreme Court may order an internet intermediary or other person or organization to remove the intimate image from any platform operated by the internet intermediary and from any other electronic form of application, software, database or communication method, delete or destroy the intimate image, and de-index the intimate image from any search engine.
In cases of threatening to distribute an intimate image, a Tribunal or Court may order the person who threatened to distribute the intimate image to refrain from distributing the image and delete or destroy all copies of the intimate image in the person’s possession or control.
Furthermore, individuals who are depicted in an intimate image that has been distributed by another person without consent or who is threatened with the distribution of the intimate image may make a claim for damages—including compensatory, aggravated and punitive damages and any prescribed damages.
In addition to providing for making a claim for damages, there are other important protections in the Act. For instance, the Act allows for applications to be made on behalf of deceased and minors.
A noteworthy thing to mention is that internet intermediaries are not liable for the above if they have taken reasonable steps to address the unlawful distribution of intimate images in the use of their services.
Also, it is important to point out that when there are applications for a protection order, a claim for damages, and claims for injunctive relief restraining a person from contravening an order, the Tribunal or Court must order a ban on publication of the name of the applicant or claimant, as applicable, or other information likely to identify the applicant or claimant, unless the applicant or claimant was an adult at the time of the distribution or threat of distribution, the applicant or claimant requests that there not be a publication ban, and there are no other reasons to protect the identity of the applicant or claimant.
Orders of the Tribunal are enforceable as if they were orders of the Supreme Court.
There are also administrative penalties that can be ordered by the Tribunal if the Tribunal determines that the person has failed to comply with a protection order, and the person was given an opportunity to be heard before the administrative penalty was ordered. The amount of the penalty must not exceed the prescribed amount.
The rights and remedies under the Act are in addition to any other right or remedy that may be available to an applicant, a claimant or a respondent.
Interestingly, the Act applies retroactively; it applies to the following that occur on or after the date that the Act received first reading in the Legislative Assembly (March 6, 2023):
- A distribution of an intimate image depicting an individual without the individual’s consent
- A threat to distribute an intimate image depicting an individual
2. Intimate Images Protection Regulation
The regulation elaborates on the following:
- The factors that the Tribunal or Court must consider when making a protection order
- Classes of individuals who can apply on behalf of a deceased individual
- The age at which a minor can apply for a protection order (14 years old)
- The age at which a minor can authorize a person to apply for a protection order on the minor’s behalf (12 years old)
- Factors that the Tribunal or Court must consider when deciding whether to cancel a publication ban
- The maximum amounts for administrative penalties (individuals $500 per day up to a maximum of $10,000; internet intermediaries $5,000 per day up to a maximum of $100,000; failure to comply with orders could bring even more administrative penalties)
What other protections are in place in Canada?
According to the Canadian Bar Association, we are not ready for deepfakes because most jurisdictions are not equipped to tackle the issue. In fact, only two other jurisdictions have protections that are similar to British Columbia. For instance, Nova Scotia’s Intimate Images and Cyber-protection Act has addressed the issue of intimate images since 2017, and Part 2 of the Saskatchewan Privacy Act has dealt with Privacy of Intimate Images since 2018.
Also, section 162.1 of the Criminal Code has made publication and distribution of an intimate image without consent a crime since 2015.
Recommendations for Canada
As can be seen from the Taylor Swift fiasco, we need real protections so that individuals who are depicted in intimate images and videos that are distributed without consent are empowered to apply for remedies such as protection orders, damages, and injunctions. Notably, there are significant penalties in the British Columbia Act and Regulation.
The previous approach (for instance, relying on copyright protections or privacy torts) are not working—the kinds of protections that are set out in British Columbia are necessary in every province and territory in Canada.
This is especially important now, as we approach elections in many jurisdictions around the world. It is urgent that we act swiftly in this regard.
- Recent proposal for an American federal privacy law - April 19, 2024
- Bill 149 receives royal assent March 21, 2024 - April 1, 2024
- Reasonable expectation of privacy in Internet Protocol (IP) addresses - March 26, 2024
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