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4 March 202512 minute read

Quebec joins BC in obligating online platforms to battle against unlawful sharing of non-consensual intimate images in Canada

New Canadian laws are dramatically increasing the legal and financial risks for online intermediaries. Addressing the harms from non-consensual intimate materials has been a legislative priority in Canada. Quebec's new Bill 73 and British Columbia's Intimate Images Protection Act impose significant obligations on companies hosting or facilitating the sharing of user-generated content, including social media platforms, gaming services, hosting providers, and search engines. Failure to comply with these laws can result in substantial fines, court orders, and even personal liability for company officers and directors.

This article provides an analysis of these legislative changes, outlines the potential liabilities for intermediaries operating in Quebec and BC, and offers practical steps to mitigate risk and ensure compliance.

Intimate materials are often shared through social media, websites, messaging apps, and even gaming platforms, reaching potentially vast audiences very quickly. Canadian legislators have recognized that simply relying on criminal laws to punish the perpetrators sharing these materials isn't enough. While the Criminal Code of Canada does criminalize the distribution of intimate materials without consent in Section 162.1, prosecuting these cases can be difficult because the legal bar to convict is (necessarily) very high; and the complexity increases in international prosecutions and tracking perpetrators across jurisdictions.

Through this lens, we have seen a legislative approach in several Canadian provinces focused on civil liability, takedowns, and the business of internet intermediaries, who are the gatekeepers and infrastructure of the internet. They include:

  • Hosting providers: companies that store website data, including images and videos;
  • Social media platforms: platforms expressly designed for users sharing content in small or large groups, or publicly;
  • search engines: tools that index and link to online content;
  • Online forums and communities: communication tools where users discuss topics and share media; and
  • Gaming services: online games and “gamified platforms” where users can share images, videos and likenesses, sometimes for social media purposes and sometimes for in-game content.

The logic of implicating internet intermediaries within the legislative framework is that they are in a position to remove or block access to non-consensually shared intimate materials (regardless of whether the perpetrator can be found or where in the world they may be located) and that punishing wrongdoers takes a backseat to protecting victims. By creating laws that place obligations on these companies, Canada aims to tackle the problem where it spreads — the platforms that facilitate (whether intentionally or not) the spread of these harmful materials. We have previously discussed British Columbia's Intimate Images Protection Act as an example of this legislation.

In this article, we explore the latest legislative and case law developments in Quebec and BC involving the sharing of intimate materials, as well as discuss what intermediaries in each province can do to protect themselves from the bad acts of their users and make their online environments safer for all.

Quebec’s Bill 73

Quebec recently enacted the Act to counter non-consensual sharing of intimate images and to improve protection and support in civil matters for persons who are victims of violence (“Bill 73”), which was unanimously adopted by Quebec's National Assembly on November 28, 2024, and later assented to on December 4, 2024. While parts of Bill 73 came into effect on December 4, 2024, the majority of the provisions discussed in this article, which are found in the Act to counter non-consensual sharing of intimate images, are slated to come into effect on June 4, 2025, unless the government provides for an earlier enactment date. This legislation introduces significant changes to how internet intermediaries are treated in cases of non-consensual sharing of intimate materials.

The Quebec law broadly defines “intimate images” as those specifically covering not only various forms of media depicting nudity, partial nudity, or sexual activity such as photos, videos, audio recordings, and live broadcasts, but also AI-generated or altered content. (For that reason, we will continue to write more broadly about materials, not just images, but readers should note the common “intimate image” shorthand). The legislation also allows for orders to be issued against all "persons," which must be read to include internet intermediaries.  

Whereas the BC process uses the Civil Resolution Tribunal for dealing with the removal of intimate materials (even on an emergency or ex parte basis), Quebec raises the bar by requiring that applicants use an emergency application process run through a confidential form on the Quebec Ministry of Justice's website or through the submission of an outline that briefly presents the alleged facts, with any supporting documents to be produced with the court office in a manner that ensures their confidentiality. The difference between a Justice-focused approach and a civil tribunal is made clear in the function of BC’s “Intimate Images Protection Service” government site, which focuses on getting resources and service available to victims so that they can apply to the BC Civil Resolution Tribunal. We do not expect the Quebec Ministry of Justice website to be so sanguine.

Applications for orders against persons under Bill 73 can be made without providing notice to the other party, meaning internet intermediaries may only become aware of an application after a decision maker has issued an order affecting them. In fact, applications for orders can be heard outside the presence of the parties.

If a decision maker concludes that intimate materials have been shared online without consent, they can order any person, including an internet intermediary, to remove or de-index the materials, cease sharing or broadcasting them, or make any other order that is “appropriate in the circumstances” to prevent sharing or access to intimate images. This may include ordering internet intermediaries to provide “any information necessary or useful for putting a stop to the sharing of such an image or for preventing it, in particular any information that may be used to identify a person who has shared such an image or who is threatening to do so”.

Once notified of the decision, the defendant or any other person the order concerns (including an internet intermediary) may request that the order be annulled on the grounds that the allegations in the statement made by the person who requested the order are insufficient or false, in particular because either i) the person represented in the image did not have a reasonable expectation of privacy; or  ii) the image was shared within reason for legitimate public information purposes. As an internet intermediary, it may be difficult to meet this burden of proof, particularly in the former case where an internet intermediary is not likely to have information regarding the implicated person’s expectations around the privacy associated with the image.

Severe penalties for non-compliance are included. Failure to comply with a court order under Bill 73 may result, in addition to the sanction for contempt of court, to fines ranging from $500-$5,000 per day for natural persons and to fines ranging from $5,000 to $50,000 per day for legal persons, with penalties doubling for repeat offenders. There is also the possibility of an 18-month maximum prison sentence for more serious cases. If a legal person disobeys an order made under Bill 73, the officer, director or representative of the legal person who ordered or authorized the commission of the act or the omission constituting the offence or who consented to it, is a party to the offence and is liable to the same penalty as that legal person.

The risk for internet intermediaries in Canada

These legislative steps represent a continued departure in how internet intermediaries are treated in Canada with regard to liability for content; in this case, specifically, non-consensual sharing of intimate materials. There is the potential for severe penalties and civil (or even criminal) liability that places a higher burden of responsibility on these entities to actively monitor and respond to such content on their platforms. It is notable how different Canada’s approach is from other jurisdictions, such as the United States. US internet intermediaries often enjoy broader protections from liability for user-generated content (such as the protection under Section 230(1)(c) of the U.S. Communications Decency Act). Intermediaries should not assume they have similar protections in Canada.

While BC law limits liability of intermediaries where “the internet intermediary has taken reasonable steps to address the unlawful distribution of intimate materials in the use of its services”, Quebec's Bill 73 does not provide a specific limited liability regime for internet intermediaries. The Quebec legislation aligns more closely with European approaches that hold intermediaries more accountable for content on their platforms, especially after receiving notice of illegal or harmful content. This is also consistent with the approach taken by Canadian courts that there is nothing inherent to an internet intermediary’s business that could prevent it from being the publisher of materials (and, thus, liable for it). We saw this ethos reflected in the Online Harms legislation that died on the order paper when Parliament was prorogued earlier this year. The discussion in our article on that legislation equally applies here. We note, however, that Canada does not appear to be close to having that failed legislation’s 24-hour takedown requirement, nor the proposed federal Digital Safety Commission regulator.

Like BC’s law, Quebec’s Bill 73 acknowledges and specifically addresses the possibility for a person to revoke their consent to the sharing of intimate materials. Additionally, Quebec’s law highlights the problems with this scenario in the entertainment world, by specifically providing an exception to such revocation for contracts for “commercial or artistic purposes”, unless the possibility of revoking consent was specifically addressed therein or the contract is a contract of adhesion, that BC’s law doesn’t. Internet intermediaries who receive such a revocation must make every reasonable effort to ensure the materials are inaccessible on their platform. Internet intermediaries could be held liable for any injury resulting from intimate materials being made accessible or shared after receiving a consent revocation.

Overall, Quebec’s Bill 73 represents a strong stance to address the issue of non-consensual sharing of intimate materials, placing significant obligations on internet intermediaries to cooperate in removing such content and potentially facing severe consequences for non-compliance. It places the potential victims of these crimes first (arguably, even before protections for unaware intermediaries or the rights of the alleged criminal perpetrators), recognizing the grave harm that distribution of such materials can cause to the rights and wellbeing of the depicted individuals.

Recent case law development

Under BC’s Intimate Images Protection Act, there have now been eight decisions rendered by the Civil Resolution Tribunal through January 15, 2025, none of which address intermediaries. However, news recently broke of a confidential case winding through the British Columbia Supreme Court under the Act, in which a BC woman filed a lawsuit against a former friend, alleging that he posted sexually explicit images and information about her online without her consent. The plaintiff knew the defendant since 2013, and they were friends on social media platforms. The plaintiff claims that the defendant obtained images of her through their social media connections and alleges that he edited her images into pornographic photos and posted them online on various websites and platforms. Due to the sensitive nature of the case, many of the details are not published (or publishable), but we note that it necessarily involves various online platforms and could eventually include orders against intermediaries.

Steps intermediaries can take to protect themselves

To mitigate their potential liability and, more importantly, to protect their users, internet intermediaries should take proactive steps including the following.

  • Develop clear policies: implement clear and easily accessible policies prohibiting the non-consensual sharing of intimate materials. These policies should outline what constitutes a violation and the consequences for users who engage in this behavior.
  • Establish reporting mechanisms: create user-friendly and effective reporting mechanisms that allow individuals to easily report non-consensual intimate material sharing. These mechanisms should be well-publicized and easy to find on the platform.
  • Swiftly respond to reports:  develop internal processes to review and respond to reports of non-consensual media sharing quickly and efficiently. This includes having trained staff who understand the sensitivity of these issues — as well as understanding that the request might come in the form of an already-issued order enforceable in Canada under threat of sizeable penalties.
  • Implement removal procedures: establish clear procedures for removing or de-indexing reported materials promptly upon allegation of non-consent and/or receipt of a valid order.
  • Consider proactive measures: explore proactive measures to detect and prevent the sharing of non-consensual intimate materials, such as using human or AI-based content moderation tools (while being mindful of privacy concerns, potential biases and the potential harm caused to humans in viewing the same).
  • Cooperate with law enforcement and legal orders: develop procedures for cooperating with Canadian law enforcement and complying with valid Canadian orders related to non-consensual intimate material sharing.
  • Transparency and communication: be transparent with users about the platform's policies and actions regarding non-consensual intimate material sharing. Communicate clearly about the steps being taken to protect users.

An evolving legal landscape

Canada is at the forefront of developing legal frameworks to address the complex issue of non-consensual intimate material sharing online. By focusing on legislation that targets internet intermediaries, provinces like Quebec and British Columbia are looking to take an approach that recognizes the unique challenges of online enforcement. Internet intermediaries should understand these evolving legal obligations and take proactive steps to remain compliant.