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The legality of sexting

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The issue of sexting is becoming more frequent in news stories and in the courts. In Bridgewater, Nova Scotia, a case of 6 teenagers who are accused of sharing intimate images of girls in a Dropbox account is winding its way through the court system. The matter, which involves large volumes of disclosure, could be a pivotal case in terms of testing the limits of a relatively new section of the Criminal Code which prohibits people from sharing intimate images of a person without their consent.

The case shows how courts and law-makers are dealing with the quickly-changing realities of technology and social media. The issue of 'sexting', or sending sexually explicit photos through texts, e-mails or social media, is a relatively new phenomenon, and may leave students asking, is it illegal? The answer, as with many complex legal questions, is: it depends.

There are two main sections of the Criminal Code that could cover this kind of situation, depending on the age of the person. If a person is over the age of 18 and sends a photograph of themselves to someone else, then there is nothing illegal about that. However, if the recipient sends that image to someone else, without the senders consent, then they can be charged with an offence under s. 162.1(1), of transmitting an intimate image without a person's consent. In this context, intimate image is defined as a visual recording of a person in which the person is nude, exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity. The person must also have a reasonable expectation of privacy in the image.

If an individual sending a photograph is under 18 years of age, then the police will have to consider whether to lay charges associated with child pornography. Child pornography is defined as an image, video or other visual representation that either shows a person under 18 engaged in explicit sexual activity, or the dominate characteristic of which is the depiction of a sexual organ or anal region, for a sexual purpose. So, a young person who photographs themselves in a provocative pose and sends it to someone else could technically be charged for production and distribution of child pornography. Meanwhile a person who sends it to someone else without their consent could be charged with distribution of child pornography and/or transmission of an intimate image.

The laws around child pornography are not necessarily designed to criminalize someone who is sharing an intimate image of themselves. Still, in cases where images of teens are being sent, the behaviour still comes within the realm of child pornography laws, as long as it is for a sexual purpose. And in the case of the teenagers in Bridgewater, they were charged both with transmitting an intimate image and of possession and distribution of child pornography.

The transmission of an intimate image provisions are meant to deal with the issues of cyberbullying and 'revenge porn' which can be the ugly consequences of sexting. Still, the laws around this are developing with an eye to catching behaviour that victimizes those who have their images shared, and not necessarily people who are wilfully sharing images of themselves with someone their trust. The case may end up providing guidance to the courts in future cases about the proper scope of this section of the Criminal Code. In the end, how these laws will affect these behaviours, particularly among young people, remains to be seen.

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