Debunking the Myth of 'Not My Bad': Sexual Images, Consent, and Online Host Responsibilities in Canada

Non-consensual distribution of intimate images has been a crime in Canada since 2015. This article argues that it is time to consider how online platforms, hosts, and fora that allow users to post sexual images either directly engage in criminal acts or incur responsibility to help suppress this illegal activity. Methods for holding businesses responsible for participating in promoting or facilitating this type of wrongdoing by users should vary according to the level of involvement and risk that attaches to a particular online business model. One method applies to businesses that specifically traffic in illegal materials; for these specific “revenge porn” businesses, we should impose direct liability, as we do in other contexts. Another method applies where the nature of the business places it at high risk for facilitating customer illegal activity and where the business profits from that wrongdoing and so faces disincentives to discourage it. The online amateur porn industry more generally falls into this category. In these cases, obligations to assist in rooting out the illegal behaviour of customers via a consent verification system is appropriate. A third method applies to all businesses that host user-generated content where unfettered user activity is less expensive than addressing complaints about content and, thus, constitutes a structural disincentive to respond. Here, mandated response to complaints about non-consensual pornography is appropriate. The article argues that while freedom of sexual expression, policies protecting intermediary immunity, and online anonymity are important and complicate solutions to this lucrative traffic in sexual images, finding principled solutions is not impossible.