Caveat -There has been significant public awareness about sextortion involving strangers who target youth, but what happens when a teen partner or ex-partner weaponizes an intimate image you shared with them and makes it public?
“Guelph teen faces child porn charges after parents get text with naked photos of their son”
The above noted quote comes from a December 16th 2024 CBC article that was shared with us by members of our family who live in Waterloo, Ontario, which raised concerns about advice provided in the article by a police agency regarding teens, intimate images, and the law. (1) Many of the comments and advice made by the Guelph police were on point, however, we felt it was important to clarify some comments about the law on this sensitive topic, as it directly impacts teens and their families.
The article quotes from the Guelph Police Service Media Relations Coordinator, who appears to be a civilian and not a police officer, who stated:
“Intimate images of anyone under the age of 18 is considered child pornography,” he said. “Even people possessing photos of themselves, if they’re under 18, technically they’re in possession of child pornography.”
While the first sentence is technically correct, the second sentence is misleading and lacks the necessary legal context. Let’s break this down step by step.
The statement, “Intimate images of anyone under the age of 18 is considered child pornography,” is true as outlined in Section 163.1 (1) of the Criminal Code of Canada. This law was created to protect minors from exploitation and abuse, and it is a vital tool for addressing child sexual abuse materials.
However, this does not tell the whole story when it comes to the sharing of intimate images in consensual relationships between teens as you will read.
The second statement that “Even people possessing photos of themselves, if they’re under 18, technically they’re in possession of child pornography” is not necessarily correct – context of its possession matters when it comes to its illegality specific to section 163.1 (2) of the Criminal Code.
Here’s why – Under Canadian law, the Supreme Court of Canada has ruled that it is not illegal for two consenting teenagers under the age of 18 to possess intimate images of each other provided they meet specific legal conditions. This legal principle is known as the Private Use Exception and stems from two key Supreme Court of Canada decisions:
- R v. Sharpe (2001)
- R v. Barbash (2015)
The Supreme court determined that if two teens are in a private, consensual, and non-exploitive relationship, they can share and possess nude imagery of each other for personal use, so long as the images remain private. In other words, the court carved out an exemption specific to the possession and distribution of child pornography when such images are shared between two consent teens.
To be clear, the following must apply for the possession of intimate images between teens to remain legal:
#1 – Both individuals are under the age of 18.
#2- The relationship is private, consensual, and non-exploitive.
#3 – The images are strictly kept private and are not shared outside the relationship.
If these conditions are met, the possession of intimate images does not violate Canadian law, as confirmed in subsequent court rulings such as R. v. M.B. (2016 BCCA 476).
The real issue arises when the images are shared outside the relationship without consent. This is what appears to have happened in the CBC article referenced earlier. Here’s a likely scenario:
- Two teens were in a consensual, non-exploitive relationship and shared intimate images privately.
- The relationship ended.
- One teen sent the images to the other’s parents as a form of retribution for the breakup.
At this point, the teen who shared the images broke the law in two significant ways:
#1 – Possession and Distribution of Child Pornography (Section 163.1 (2) and (3) of the Criminal Code)
#2 – Non-Consensual Distribution of an Intimate Image (Section 162.1 of the Criminal Code)
The law surrounding sexting and intimate images is nuanced, and context is everything. The Supreme Court of Canada’s decisions ensure that teens in consensual, private, non-exploitive relationships are not criminalized for sharing intimate images in that relationship between each other. However, when these images are weaponized, as in the case of non-consensual sharing, serious legal consequences apply- this appears that this is what happened in this case.
Statements like “Even people possessing photos of themselves, if they’re under 18, technically they’re in possession of child pornography” are misleading because they omit the Supreme Court’s rulings. Without this context, parents, caregivers, and teens may be left with an incomplete and inaccurate understanding of the law in Canada.
What parents, caregivers, and teens should know:
- Sharing intimate images can be legal: If the relationship is private, consensual, non-exploitive, and the images remain private, the law protects teens under the Private Use Exception.
- Non-consensual sharing is illegal: Sharing intimate images outside the relationship, with or without intent to harm, can lead to serious criminal charges.
- Communication is critical: Parents need to have open, honest conversations with teens about the risks and legal implications of sharing intimate images. Teens must understand that while the law may allow consensual sharing, relationships can change, and trust can be broken.
- Headlines can be misleading: The news often simplifies legal situations. In this case, the headline should have clarified that the teen was charged for non-consensual sharing of intimate images outside the relationship.
The laws surrounding teens, intimate images, and sexting in Canada are far more nuanced than headlines or oversimplified statements often suggest. While the Criminal Code and Supreme Court rulings provide important protections for minors, they also recognize the realities of consensual, private, and non-exploitive teen relationships through the Private Use Exception.
However, the issue becomes illegal and deeply harmful when intimate images are shared without consent, weaponized, or distributed outside the relationship. This is where serious legal consequences arise, underscoring the importance of understanding the law in its entirety.
Parents, caregivers, and teens must recognize that communication is key. Open, informed conversations about trust, consent, and the legal risks of sharing intimate images are essential in navigating these complex situations safely.
Those in positions of authority, including law enforcement, media outlets, and digital literacy and internet safety advocates must ensure their messaging is both accurate and complete. Misleading statements or sensationalized headlines do a disservice to families trying to understand and address these challenges responsibly. By embracing clarity, context, and education, we can better support teens, protect their well-being, and empower families to make safer, informed decisions.
Lastly, we’ve noticed that some are referring to the Guelph incident as “revenge pornography.” However, the language we use to describe such situations is critical, particularly when youth are involved. The term “pornography” generally refers to adult entertainment, making “revenge pornography” an inaccurate and misleading label in this context. This was not pornography – it was an intimate image shared within a relationship and then non-consensually distributed. A more accurate term, as recognized by us and other experts, is “tech-facilitated sexualized abuse.” Let’s call it what it truly is: a weaponized form of sexualized violence that was deliberate and targeted – NOT revenge porn.
Digital Food For Thought
The White Hatter
Facts Not Fear, Facts Not Emotion, Enlighten Not Frighten, Know Tech Not No Tech
Reference:
1/ https://www.cbc.ca/news/canada/kitchener-waterloo/guelph-police-teen-child-porn-charges-naked-photos-sent-to-parents-1.7410277
