Wednesday, July 17, 2019

posting photos and videos without permission

A while back, I was contacted by a friend of mine from another country asking for my help regarding a former (or existing? can’t remember) colleague who had created a page on Facebook titled “the incompetent ~”, where ~ was her real name, and also using her photo. She had filed a request with Facebook to have it removed, but Facebook refused, citing free speech rights that did not exist in that country’s legislation. More recently, here in Canada, a friend of mine told me a story of similar blackmail and I decided to take a more serious look at what can you post and cannot post.

A few weeks back, I was sitting on a bench in a Toronto park, around the Pride days, playing Duolingo on my phone. Only meters away, on another bench, a man was staring at me behind what seemed to be highly magnifying glasses. Minutes passed, then he stood up, walked to me and asked me “are you taking photos of me?”. I said “no”. He replied “good, cuz it’s illegal to take photos of me”, then walked back to his bench.

I exiled the thought that he might be someone famous from my mind, but the thought persisted and, days later, produced a hypothesis: it could’ve been Mike Smith, but I wasn’t sure as I wasn’t a fan of the Trailer Boys and haven’t watched him much. I had only seen him in this version of Closer to the Heart long time ago, while trying to make sense of Rush.

Once that thought had evolved, it occurred to me that I don’t know much about this topic and need to research it. Prior to this, my thinking was that you have the right to take photos and videos in a public space of anyone (provided of course you don’t do something idiotic like “upskirt”, which is an invasion of privacy and would likely fall under the “voyeurism” C-46/162 section of the Criminal Code), but there may be restrictions in publishing it. In order to avoid the quagmire of differing copyright legislation around the world, I would use only CC-licensed content (as much as possible) and generally credit or link other works of art to the original.

I have also noticed that videos with identifying characteristics may occasionally be removed or censored even while showing illegal or criminal activity, suggesting that the right to privacy of a criminal or suspected criminal may override victims’ rights or prevention efforts or the right of the public to be informed.

It’s difficult to find information on the law in Canada and more specifically Ontario, as most of what is available freely online applies to the United States exclusively and/or it may be outdated. A number of websites provide advice that may seem common-sense but could be flawed (al-phpriv). Although it may seem that way, whatever I write here is not legal advice but rather a summary of information I was able to find online, as disclosed below; it’s no substitute for the advice of a licensed attorney at law who has the ability to offer advice specifically tailored to your situation.

NB: In USA, both the Feds and States can make differing criminal statutes, whereas in Canada there is only the federal Criminal Code.


If you find yourself being stalked, harassed or having your copyright infringed upon, your first step in remedying this situation is to send a cease and desist letter, often abbreviated C&D. A number of websites provide a “step-by-step” form to create your own such letter, while collecting your personal information and possibly charging you for the service (cl-c&d). Aaron Hall offers freely a template (ahall-templ8) which I converted in an easy to use Google Doc (ahall-gdocs). A longer explanation on Cease and Desist letters as they relate to IP and interlocutory injunctions was posted on Aird & Berlis “Spotlight” blog in 2017 and I recommend it, as it clearly and almost exhaustively explains what such letters are and their purpose (ab-slc&d).

I interpret the above to mean that as long as you don’t use needlessly threatening language and you stay anchored in facts, sending a C&D letter should carry no adverse consequences.


If a C&D letter fails to obtain the expected result, a case could take a long time to be heard, and until then, one can request a temporary remedy or injunction. In Canada, this is supposedly hard to get – until you do some digging. Start with a look at Interlocutory Injunctions – in Ontario under Rule 40 (wiki-ii, mcc-ii).

A very good explanation was written in 2014 by Matt Maurer (slaw-ci) who explains a Court of Appeal decision providing a quick overview on (almost) everything you wanted to know about civil injunctions.
  • An Interim Injunction: Can be requested with or without notice to the opposing party. Argument in front of the judge is usually quite limited. If the injunction is granted it is typically for a brief, specified period of time. When an interim injunction is granted without notice it usually requires the party seeking (and obtaining) the injunction to return to court (on notice to the opposing party) to have the interim injunction continued. In practice, interim injunctions are often used to preserve the status quo for a short period of time until an interlocutory injunction can be argued.
  • An Interlocutory Injunction: Like the interim injunction, the interlocutory injunction is a form of pre-trial relief. An interlocutory injunction is an order restraining the defendant from engaging in conduct for a limited period of time, such as until the trial or other disposition of the lawsuit. Argument in front of the judge is typically more thorough than that for an interim injunction and the duration is generally longer than that of an interim injunction.
  • A Mandatory Injunction: A type of injunction that requires the defendant to act positively. Mandatory injunctions are rarely ordered and must be contrasted with the usual type of injunctive relief, which prohibits certain specified acts as opposed to imposing an obligation to act positively. Due to their nature, mandatory injunctions are often permanent.
  • A Permanent Injunction: Interim and interlocutory injunctions are imposed in ongoing cases. Permanent injunctions are granted after a final adjudication of rights.
  • The Legal Tests: For lawyers, the legal test for interim and interlocutory injunctions is well known and was set out by the Supreme Court of Canada 20 years ago (the “RJR-Macdonald Test“). The court must decide (1) is there a serious issue to be tried; (2) would the moving party otherwise suffer irreparable (i.e. not compensable with $$$) harm; and (3) does the balance of convenience favour granting the injunction.
    Justice Gillese clarified that the test for a permanent injunction is not the same as the RJR-Macdonald Test. The Ontario Court of Appeal adopted a test set out recently by the British Columbia Court of Appeal. In short, in order to obtain final injunctive relief, a party is required to establish its legal rights. The court must then determine whether an injunction is an appropriate remedy. Irreparable harm and balance of convenience are not, per se, relevant to the granting of a final injunction, although those issues may come into play.

An even more in-depth expose was written in 2017 (wf-iiprimer). This is not something you would attempt or defend on your own, but this information may be helpful when writing or responding to a C&D letter.

Despite the supposed difficulty of obtaining such injunctions in Federal Court, in a 2017 case of Sleep Country vs Sears FC148 an injunction was granted (fz-mattress) and SCC upheld a worldwide interlocutory injunction against Google, even though the latter was a 3rd party (pck-equggl).


The Canadian Criminal Code gained a new offence in March, 2015, relating to the sharing of intimate images of a person without their consent.

A summary on a Public Safety government site (psgc-cyberb) summarized the possible punishment and related offences.

Judges now have the authority to order the removal of intimate images from the Internet if the images were posted without the consent of the person or persons in the image.

Anyone convicted of distributing an intimate image without consent could face serious legal consequences. For example:

  • They could be imprisoned for up to five years;
  • Their computer, cell phone or other device used to share the image could be seized; and
  • They could be ordered to reimburse the victim for costs incurred in removing the intimate image from the Internet or elsewhere.

An “intimate image” is defined as an image that depicts a person engaged in explicit sexual activity or that depicts a sexual organ, anal region or breast. Furthermore, the image would have to be one where there person depicted had a reasonable expectation of privacy at the time of the recording and had not relinquished his or her privacy interest at the time of the offence.

Other laws related to cyberbullying

Several other Criminal Code offences also deal with bullying, including cyberbullying.
Depending on the exact nature of the behaviour, the following current offences could be charged:

  • Criminal harassment (C-46/264)
  • Uttering threats;
  • Intimidation;
  • Mischief in relation to data;
  • Unauthorized use of computer;
  • Identity fraud;
  • Extortion;
  • False messages, indecent or harassing telephone calls;
  • Counselling suicide;
  • Incitement of hatred; and,
  • Defamatory libel

All in all, the aforementioned website does a good job at summarizing the Criminal Code, even though it does not explicitly mention or link to the specific articles.

The changes to the Criminal Code were also covered by CBC (cbc-nl):

O'Shea, executive director of the Public Legal Information Association of Newfoundland and Labrador, says the amendments to s.162.1 of the Criminal Code change how cyberbullying can be fought. The amendments became law in March. 

"It makes it a new offence to do a number of things with videos or photos of a person in an intimate setting without that person's consent — including publishing, distributing, transmitting those images," O'Shea said in an interview with Here & Now.

This addition is probably salutary.

In contrast, RCMP takes a more expansive approach, dealing with bullying in general, but focusing on youth and possible consequences.

Bullying can be a traumatic experience, and some forms of bullying can even be considered illegal. These include:

  • Criminal Harassment: Repeated tormenting online, with texts, phone calls, and/or emails causing the other person to fear for their safety
  • Child pornography: Sharing intimate photos and videos of minors (<18)
  • Uttering Threats and Extortion: Threatening to share someone's personal information to others if they don't do what you want them to do
  • Assault: Threats or acts of non-consensual force, violence, bodily harm, or destruction of personal property
  • Identity Theft/Fraud: Creating a fake online profile to ruin someone's reputation
  • Defamatory Libel: Spreading rumors about someone

For all of these criminal offences, it is important to notify your local police detachment or report it to CYBERTIP.CA. Based on the available information, police will decide if an investigation is warranted and whether charges may be laid.

what you can do

Report online bullying to the social media site and block the person responsible.

However, for many of us, it’s not just intimate images of ourselves that we may want kept off the internet; as such, cyber-bullying does not apply if the images are not “intimate”, as defined by law.

The Federal justice ministry has also several pages on cyberbullying (jgc-cb).


The right to privacy and one’s image varies with property rights of the surroundings.

When on someone else’s property, different rules apply, but tresspass is not automatic (ll-tresspass).

any person can go onto the private property of another during daylight hours if permission to do so is implied. For example, if there is a path up to the front door of a residence and there are no signs warning people to stay off the land, there is implied permission for people to enter, such as a letter carrier. This implied permission can, of course, be revoked instantly by the person in charge of the property. If you are told to leave, you must leave or you could be sued for trespass.

Work rules are also a bit counterintuitive (ll-workpl).

Generally speaking, Canadian courts have not looked favourably on employers who install surveillance cameras to spy on employees without good reason. (..) In Canada, surveillance cameras can only be used to record video, not audio communications.

The main rule (video without audio is less troublesome than audio) seems to hold above.


According to Wikipedia (wiki-pubpers),

The right of publicity, often called personality rights, is the right of an individual to control the commercial use of his or her name, image, likeness, or other unequivocal aspects of one's identity. It is generally considered a property right as opposed to a personal right, and as such, the validity of the right of publicity can survive the death of the individual (to varying degrees depending on the jurisdiction).

The aforementioned article further provides a few important distinctions for common law provinces such as Ontario (i.e., not Quebec), such as intentionality and profit.
  1. Athans (1977) confirms that there is "a proprietary right in the exclusive marketing for gain of his personality, image and name"
  2. There is always a requirement that the plaintiff be identifiable.
  3. An action for appropriation of personality will have to be intentional for a plaintiff to recover at common law.
  4. There is a requirement that the defendant must have acted for the purpose of commercial gain, but Gould suggests that this may be restricted to "endorsement-type situations".
  5. It is a matter of uncertainty whether the common law tort of appropriation of personality is actionable per se or whether damages must be shown.
  6. Privacy rights are extinguished upon death, but personality rights are inheritable.
  7. A defendant will not be liable for an appropriation of personality at common law where: (i) he has consented to the use of his persona; (ii) the use made of his personality rights was merely incidental to another purpose; or (iii) the publication constituted a matter of public interest.

This is very relevant for the stated purpose of this article, so I strongly recommend not just the above, but also more in-depth articles: loyola-pdf, lx-berpar15, lx-berpar1710, lx-berpar1707.


Let’s start with a few issues in USA.

  • An excellent resource for legal issues surrounding photography in USA is Carolyn E. Wright, especially as summarized on KK blog (kk-photowright).
  • There is also the specific issue of photography at work (qu-usawork). 
  • It’s copyright infringement even if you are in the photo (f8-cinfrg).
  • Clarification of social mediat (esp Fb) posting of photos (ch-fb).
  • Nolo offers 3 reasons to stop unauthorized use of a photo: right to privacy, to publicity or defamation (nl-stophoto) and clarifies defamation (nl-dfm)
  • a very basic, common-sense and short guide to basic issues regarding posting of videos on YouTube (isw-permyt)

Jessica Lake discusses the history of street photography as well as a few recent cases in Brisbane and London (lh-au & tc-stph).


In terms of intellectual property, USA has DMCA and “fair use” whereas Canada has “fair dealing”. Whichever “fair” we’re talking about, it basically refers to a set of exceptions to copyright (in Canada, an “integral part” of the law) which allows the public to use copyrighted works without permission from the owner.

In Canada, generally copyright lasts 50 years after death of the author. Find more info on Wikipedia (wiki-fd) or on YouTube, in no particular order:

Despite being published in Toronto, a 2016 article considers a Quebec case as if it applies everywhere (sk-socmed). In the main newspaper, while the right to take photos is recognized, it is counseled that “ethically” permission should be requested (tgm-isitok, tst-eth); on an answer 4 money website, “Tom Bullmer: there is no clear law” (ja-canpix).

Hope this helped.

Sources / More info: ahall-templ8, ahall-gdocs, cl-c&d, ab-slc&d, psgc-cyberb, rcmp-bullying, wiki-cchlsuc, cbc-creep, wiki-fd, wiki-ii, mcc-ii, slaw-ci, fz-mattress, wf-iiprimer, pck-equggl, wiki-pubpers, loyola-pdf, lx-berpar15, lx-berpar1710, lx-berpar1707, wiki-intpriv, wiki-privsoc, wiki-canphoto, tgm-isitok, cippic-photo, lh-au, kk-photowright, cbc-nl, qu-usawork, f8-cinfrng, ch-fb, nl-stophoto, nl-dfm, tc-stph, isw-permyt, al-phpriv, jgc-cb, sk-socmed, ja-canpix, tst-eth, ll-vdsm1, ll-tresspass, ont-tresspass, ll-workpl

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