CAVEAT – This article is written from a Canadian legal perspective, which may differ in other countries.
We understand the concern around youth and teens under 18yrs sending intimate images or videos (nudes) of themselves. (1) Parents and professionals in our field want to do everything possible to prevent this behaviour. However, if we truly want to educate young people about this issue, we need to be transparent – sharing the “whole” truth, not just a selective version to fit a particular narrative for a noble cause.
When a Canadian police officer, internet safety presenter, or another authority figure publicly states:
“anytime a teen sends a nude photo of themselves, take a nude photo of themselves, or anything that is sexual in nature of themselves, that is considered child pornography, and when they send it they are distributing child pornography, and when they take the nude photo of themselves they are manufacturing child pornography, and if they are in possession of it on their phone they are now in possession of child pornography”
Is such a statement truly the “whole” truth? We would argue “not exactly”. While the intentions behind this statement may be well-meaning, something often referred to as a “noble cause”, it overlooks the legal exceptions established by the Supreme Court of Canada that specifically apply to teens. Let us explain further.
The above noted highlighted statement is factually true, BUT neglects to mention the legal exception to this statement. Canadian case law, including two Supreme Court of Canada decisions (R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2 and R. v. Barabash, 2015 SCC 29, [2015] 2 S.C.R. 522), clarifies that it is not illegal for two consenting teens under the age of 18yrs to possess or exchange intimate images or videos of one another, provided the content was shared privately, possessed consensually, legally, and without exploitation. Essentially, if teens privately share intimate images within a private consensual relationship, without external distribution or display, the court has ruled that it is not illegal to do so – they carved out an exception to the child pornography law.
However, if one party shares or shows the intimate material beyond the relationship without the other’s consent, they may face charges related to the possession, distribution, or access of child pornography, also known as Child Sexual Abuse Material, under section 163 of the Criminal Code.
The Barabash case also established that consent to possess intimate images can be revoked at any time. The court stated:
“In my view, the balance struck between the right of free expression and preventing harm to children in Sharpe suggests that young persons who participate in a sexual recording caught by the private use exception retain the ability to ensure its return or destruction.”
In simpler terms, consent to possess an intimate image or video can be withdrawn at any point after its exchange. Should this happen, the individual in possession of the image or video of someone under 18yrs could be charged with possession of child pornography if it is not immediately deleted upon request to do so by the person who sent and was depicted in the picture.
Another concern, noble cause statements can also result is those who are survivors of non-consensual distribution intimate images fearing being labeled as criminals themselves, which can discourage them from seeking help if their images are misused. This fear of stigma or arrest can prevent them from reporting the incident, leaving them vulnerable to further exploitation, blackmail, and emotional distress.
For instance, if a teen shares an intimate image consensually with a partner, and that partner later violates their trust by distributing the image, the teen may hesitate to involve law enforcement. The perception that their consensually shared image is considered “self-generated child sexual abuse material” can cause them to avoid reporting the violation, allowing the individual who shared the image to go unpunished. This is a real concern that we have heard from both teens and parents who have connected with us for help.
Context matters! It’s crucial to differentiate between consensual sharing of intimate images and situations of exploitation under Canadian law. When an intimate image is shared consensually within a trusted private relationship, it remains a private act, it’s not a criminal act in Canada, and it’s not child sexual abuse material. However, when trust is broken and the image is shared or exploited without consent, it becomes an issue of exploitation and criminality for the individual who distributed the image—not the sender.
In Canada, if someone exploits an intimate image of a person under 18yrs through grooming or non-consensual distribution, they are in possession of child sexual abuse material (CSAM). However, the teen who initially shared the image did not knowingly create or distribute “self-generated child sexual abuse material.” The criminal act occurs when the image is shared without consent. This distinction is crucial in educating teens about sexting.
While the intentions behind framing all intimate images shared by teens as “child pornography” may come from a place of wanting to protect youth, a noble cause, it fails to present the full legal and nuanced reality. In Canada, there are clear legal distinctions between consensual sharing of intimate images and non-consensual exploitation. By neglecting to acknowledge these distinctions, we risk misinforming teens, creating unnecessary fear, and deterring them from seeking help when trust is broken, and exploitation occurs.
To effectively educate young people about sexting, we must provide them with accurate information that empowers informed decision-making, rather than relying on fear-based narratives that misrepresent the risk of arrest, especially when no such legal risk exists in certain circumstances. By presenting the full truth, rather than glossing over or ignoring important details about Canadian law, we can foster a clearer understanding of consent, responsibility, and the legal implications of sharing intimate content. This approach not only builds trust but also improves communication, particularly in cases where intimate images are shared non-consensually—something we prioritize in our education programs here at The White Hatter!
Digital Food For Thought
The White Hatter
Facts Not Fear, Facts Not Emotions, Enlighten Not Frighten, Know Tech Not No Tech
References:
1/ https://thewhitehatter.ca/intimate-images-nudes-sexting-deepfakes-and-sugaring/
