In a recent criminal case two people were involved in a long distance romantic relationship and they engaged in intimate webcam video chat. Both people were naked. Both knew they were on video. One party, unbeknownst to the other, took a still photo of his partner from the live video stream.

The Ontario Court of Appeal found that the party taking the still photo committed the criminal offence of voyeurism.

After the Complainant ended the relationship, e-mails with nude photos of her were sent to many people. These nude photos were the screen shots that the Defendant took during the video chats. The Defendant was charged with six offences arising from the distribution of the nude photos and he was also charged with voyeurism for taking the screen shots in the first place.

The Court found there was reasonable doubt as to whether he had distributed the photos so he was not convicted of those charges. However, he was convicted of voyeurism. His defence centred around the fact that the Complainant willingly posed nude in the video chat knowing that she was before a camera. He argued she could not have a reasonable expectation of privacy. He also argued that he was not acting surreptitiously because everyone knows that screen shots can easily capture images from video.

The Court relied on previous Supreme Court of Canada cases which say that the purpose of enacting the voyeurism offence is to protect privacy from new threats imposed by the abuse of evolving technologies.

The basic question is whether, in the circumstances, the person observed and recorded would reasonably expect not to be the subject of the type of observation or recording that in fact occurred. The court said the factors to be considered include:

  1. The location of the person who is observed and recorded;
  2. The nature of the impugned conduct, whether it’s an observation or recording;
  3. The awareness or consent to potential observation or recording;
  4. The manner in which the observation or recording was done;
  5. The subject matter or content of the observation or recording;
  6. Any rules, regulations or policies that govern the observation or recording in question;
  7. The relationship between the person who is observed or recorded and the person who did the observing or recording;
  8. The purpose for which the observation or recording was done; and
  9. The personal attributes of the person who is observed or recorded.

In this case, although the Complainant willingly and knowingly appeared on camera in video chats for the express purpose of displaying herself to the Defendant naked and in sexual poses, she had a reasonable expectation that he would not take screen shots of their consensual sexual activity. The court said it should not make a difference that their consensual sexual activity took place in a “virtual space” rather than a physical room.

There have been several cases in the last few years where people have been sued for surreptitious video recording or distributing videos that the plaintiff had consented to being taken but did not consent to being distributed.

In one recent case an adult woman consented to making a sexually explicit video but did not consent to having it posted on the internet. She was awarded damages in the amount of $100,000.00. This is the second case where a court has assessed damages in the six figure range for image based sexual misconduct.

Given this recent Ontario Court of Appeal decision where the Court found the plaintiff consented to the live video feed but not to the taking of screen shots, it is quite possible such conduct could form the basis of civil law suits in the future.

One can see how in such circumstances a plaintiff could argue that mental distress flows from the knowledge that such photos exist and should be compensated in damages.