Knowing what is and isn’t legal when it comes to sharing nude or seminude images can be challenging. There are many different laws and information about sharing intimate images and videos online especially when they are shared without your teen’s consent. But what about when your teen does consent and their image hasn’t been shared? Is it still considered child pornography? Online sexual exploitation? This document shares information about the Private Use Exception Rule (PUER) as it applies to shared intimate images.

What is the Private Use Exception Rule (PUER)?

In 2001, the Supreme Court of Canada created the PUER. PUER states that it is not illegal for two consenting people (including those under the age of 18) to possess or carry a naked/nude photo of one another. The image has to have been shared consensually, lawfully, and not be exploitative.

The following cases are examples of when the PUER has been used.

  • In R v Sharpe, 2001, the Supreme Court of Canada created the PUER, which is defined as a defence to the possession and creation of child pornography.
  • In R v Barabash, 2015, the SCC stated that the PUER protects a person if they are in possession of a visual recording or intimate pictures sent to them by another person for private use only.

What is the Distribution of Non-Consensual Images?

The PUER does not apply if an intimate image is shared without consent (i.e. when a person expected the image to be kept private).

An intimate image is one where a person is nude, exposing their breasts, genitals, or anal region, or is engaged in sexual activity. It can be any visual recording, including a photograph, film, or video recording.

  • It is LEGAL in Canada for two consenting teenagers under the age of 18 to possess or carry a naked/nude photo of one another.
  • PUER applies to private recordings if the sexual activity recorded is consensual.
  • A minor:
  • 1. must consent to any sexual activity displayed in the recording (Criminal Code, ss 150.1(2) and
  • 2. cannot be sexually exploited (Criminal Code, ss 150.1(1)-2.1 and 153).
  • It is ILLEGAL to distribute it beyond your relationship.
  • Section 162. (1) of the Criminal Code of Canada states that “Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty:

    (a) of an indictable offence and liable to imprisonment for a term of not more than five years; or
    (b) of an offence punishable on summary conviction.”

Sending an intimate image or video of yourself is also illegal if you are in a position of trust or authority over the person you are sending the image to, or if the relationship is one of dependency or is exploitative. A few examples of being in a position of trust or authority are a camp leader, coach, tutor, or supervisor of someone in a workplace.

Before Sending a Nude or Semi-Nude Image to Someone:

If your teen is thinking about sending intimate images of themselves to another person, here are some useful tips for them that may help to maintain their privacy:

  • Use apps that provide encrypted services when sending images
  • Tell the person they're sending the image/video to that they do not want the image/video to be shared
  • Lock their phone and apps with a hard-to-guess password
  • Do not back up nude images/videos to the cloud as they can be hacked
  • Don’t capture identifying marks such as scars or tattoos, or faces
  • Avoid wearing identifying clothing such as a school or sports team sweatshirt
  • Have a neutral background
  • Turn off their location before they take the photo or video
  • Turn off automatic backups
  • Have trust and consent in their partner

Need Help?

If you or your teen think they are in danger, it’s important to get help. You can do that in a way that feels right to you.

Here are some options:

  • Have your teen talk to you or another adult they trust
  • See our tip sheet on Legal Remedies for Image Based Abuse
  • Contact the Kids Help Phone for free listening and crisis support for youth and kids across Canada. This service is available at all times. Your teen doesn’t have to give their name. They can talk about anything. Phone 1-800-668-6868 or text CONNECT to 686868.
  • You don’t have to talk to the police to get help from a support worker. Find a support worker through www.sheltersafe.ca. This type of worker can offer:
    • Safety planning
    • Emotional and practical support
    • Information about the criminal justice system
    • Connections to other services and support

Digital Dating Violence is part of a continuum of violence that can be both online and in-person. If you or someone you know is experiencing digital dating violence, you are not alone. Encourage them to chat with a trusted adult, connect with the Kids Help Phone to create a safety plan, or you can use sheltersafe.ca to find a shelter/transition house near you to discuss options and create a safety plan. You don’t need to stay in a shelter to access free, confidential services and support.

Adapted for Canada with permission from BCSTH’s Technology Safety project, based on their resource Private Use Exception Rule and the Sharing of Intimate Images

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