Sudbury lawyer prepares precedent setting case for non-consensual distribution of images
Litigation could determine what kind of damages victims can expect in civil lawsuits of such nature
A lawyer in Sudbury, Ont., has a civil case that could set a precedent for people affected by intimate images released without their consent.
Dhiren Chohan's client was ordered to pay over $140,000 in damages last year for allegedly posting a video of his ex-girlfriend on a porn website, which was taken down at the plaintiff's request.
Chohan then succeeded at setting aside his client's judgment for damages and liability.
Now he is preparing for a possible trial.
"It's an important case in this area of law because what's going to happen is once a judge rules on liability and damages that's going to be the first statement of law with respect to a civil remedy for people suffering from these types of wrong doings by people who are posting images without their consent," Chohan said.
"That precedent once set can be a launching point for many victims of this type of behaviour to say no, we actually have a civil remedy not just a criminal remedy."
Damages should reflect 'size' of harm
Victims of the non-consensual distribution of images can also pursue criminal law.
But for civil matters, Chohan said that his case could clarify what kind of damages victims of the non-consensual distribution of images can expect.
"The courts have acknowledged that this type of harm is extremely severe and so damage awards should reflect that in its size," Toronto-based lawyer Lara Guest said.
"The motivation behind the damages is repairing that harm."
Individuals should not be blamed for sending explicit photos or videos because that is within their right, according to Guest.
Defamation risk for 'outing' alleged distributors of non-consensual explicit images
"There's absolutely nothing wrong with that in terms of their conduct," Guest said.
"But the conduct that's bad and malicious and illegal is the conduct of actually posting it or distributing it."
Meanwhile, people who try to "out" others online for releasing intimate images may be at risk of defamation, according to Ottawa-based lawyer Owen Bourns.
But he said truth and fair comment can be used in defence.
"If you're trying to expose people who have allegedly been involved in some kind of nefarious or potentially illegal activity, you just have to be factual in terms of the information that you're bringing forward," Bourns said.
"It would be smart not to exaggerate or assume or estimate what you think the case might be because that's where you may be crossing the line into defaming whoever you're talking about."