Lauren Stokes Social Justice Fellow, Spark LLP JD Candidate, 2021
Throughout this Summer I have had the opportunity to work on a Windsor Law LTEC Lab Social Justice Fellowship that involved working at Spark LLP, a law firm in downtown Toronto. The project, titled Reclaim Pro Bono, focuses on providing legal information, advice, and assistance to people who have had intimate images distributed online without their consent.
Commonly referred to as ‘revenge porn’, the non-consensual sharing of intimate images has become an increasingly common issue. With studies identifying that up to 25% of people are affected by this form of image abuse, the Reclaim Pro Bono Project provides assistance where truly needed.[1] With the impact that advancements in technology and cyberspace have on law, the project provides information to the public in the form of online articles, and legal representation for victims (provided by the lawyers at Spark LLP).
The Reclaim Pro Bono Project is unique in that it addresses a relatively new area of law in Ontario. With the non-consensual sharing of intimate images becoming an offence in the Canadian Criminal Code in 2014 (s. 162.1), there has been a recent shift in civil law in Canada to provide remedies which compensate victims for the harm they have endured. In multiple provinces -including Manitoba, Alberta and Saskatchewan- civil remedies have been provided through provincial legislation, which allows for victims to sue the person who shared their intimate image without consent. In Ontario, however, there is no civil legislation in place to address the non-consensual sharing of intimate images. There has, however, been recent developments through the common law.
In 2016, with the case of Jane Doe 464533 v D. (N.).,the Ontario Superior Court of Justice first recognized the right to raise a civil claim of damages for the non-consensual sharing of an intimate image.[2] In Jane Doe 464533 v D. (N.)., the court found that the defendant was liable for sharing an intimate video of the victim and awarded the victim $100,000 in damages.[3] Although this decision was set aside, in the more recent case of Jane Doe 72511 v Morgan (2018), the Ontario Superior Court of Justice once again held that damages can be claimed for the non-consensual sharing of an intimate image.[4][5] With this development, victims have a new precedent to provide the basis for future claims.
As an incoming second year law student at Windsor Law, being able to work on this project was an incredibly interesting and beneficial experience. I had the opportunity to work with and learn from established lawyers and improve my legal research skills. In my role as Social Justice Fellow, I wrote articles for the Reclaim Pro Bono Project website (http://www.reclaimprobono.org), researched cases and laws surrounding the topic of non-consensually shared intimate images, and wrote legal memos identifying causes of action including breach of copyright, breach of privacy, breach of confidence and intentional infliction of mental distress.
Overall, throughout the Summer, I have realized the importance of this project and providing legal services and remedies for victims of cybercrime. An interesting element of cybercrime is that its harm is often uncontained. For example, once an image is shared online, its ‘digital footprint’ is often uncontrollable and, because of this, the harm caused to victims can be extreme and deserving of compensation. Thankfully, the Reclaim Pro Bono Project will provide legal services to victims that can support them in seeking the compensation they deserve. I would like to thank the lawyers at Spark LLP- Jeff Rosekat, Jacqueline Horvat, Sanjay Kutty and Alexandria Chun- for their work and support on this project.
Throughout the upcoming academic year, the Reclaim Pro Bono Project will be continued with the assistance of externship students and supported by the lawyers at Spark LLP. For more information about the project, please visit the project website: http://www.reclaimprobono.org.
[1]Data & Society Research Institute and Center for Innovative Public Health Research (2016) “Non- consensual image sharing: One in 25 Americans has been a victim of “revenge porn.”
[2]Jane Doe 464533 v. D. (N.),2016 ONSC 541, 128 OR (3d) 352.
[3]Ibid at para 69.
[4]The decision in Jane Doe 464533 v. D. (N.) was a default judgement since the defendant declined to appear in court and present a defence. After the trial, the defendant successfully moved to have the judgement set aside on the grounds that it was in the interests of justice to allow him to present a full defence.
[5]Jane Doe 72511 v. Morgan, 2018 ONSC 6607, 143 OR (3d) 277.