SELECTED CASE LAW
In 2018 ONSC 2299, Mr. S was accused of trying to extort money from Ms. K by threatening to post intimate images on Facebook and Skype where her friends and family would see the images. He allegedly posted two images online (on three Facebook accounts and one Skype account) without her consent when she did not give him any money. He was charged with extortion and the non-consensual distribution of intimate images. Mr. S claimed he had a legitimate reason to ask for the money and claimed Ms. K had posted the images on their joint accounts, not him.
Evidence included 557 pages of texts between the parties over various social media accounts, as well as text and video messages from Skype.
Ms. K acknowledged there were many photos of her in the nude, alone and having sex with men. She and Mr. S enjoyed going to nude resorts where they would sometimes film her en-gaged in sex acts with other men. She claimed she did not have access to those images that were posted and claimed only Mr. S had access to them. However, she had shared other intimate images with people she had been intimate with, some friends, cousins and a sister. She did not consent to having any of the images of her sexually engaging with someone else to be put on the internet. However, she had put some nude images of her on the internet in the past including at least one video of her engaging in sexual activity with Mr. S.
The images that had been posted online were of her engaged in sex acts with other men. The court noted:
Prior to leaving this issue I would like to make it clear that the fact that Ms. L.K. may herself have distributed intimate images of herself, or consented to the accused putting intimate images of her on the Internet, (other than the two images in question) does not equate with consent to the two images in question. Consent to each image must be given. Consistent with that observation, Ms. L.K. acknowledged that she had consented to many other intimate images of her having been placed on the Internet, and acknowledged having done so herself. There is no suggestion that an individual consent had been given to each image. Rather, I was left with the impression that it was a blanket consent or understanding between Ms. L.K. and Mr. S.S. related to a specific group of images. I conclude that consent can be given to either individual images or groups of images provided they are identifiable.
There was dispute about who had created and had control over the social media accounts the images were posted up on, who had copies of the images, and who posted the images. There were significant issues around credibility and authenticity around much of the evidence of this trial. There was evidence that the images were intimate and were placed online, however, who put the images online and whether Ms. K had consented to them being posted or withdrawn consent for them to be posted was unclear. Mr. S was acquitted of the non-consensual distribution of intimate images. He was also acquitted of extortion because the language he used was not considered threatening by the court and because the integrity of the evidence had been severely compromised, as some of the messages were missing from the evidence.
 At para 29.
Criminal Offence(s): Non-Consensual Sharing of Intimate Images