X, the platform formerly known as Twitter, has successfully argued a B.C. law can not be used to order it to delete an intimate image.
British Columbia’s Civil Resolution Tribunal published its decision on the dispute Monday, dismissing an application by the woman whose image was published and shared non-consensually.
The woman, referred to as TR due to a publication ban, was seeking an additional administrative penalty of $100,000.
In a previous decision, the tribunal found the platform’s refusal to delete the image—instead only geoblocking it to make it unviewable in Canada—violated a protection order granted under the Intimate Images Protection Act. Tribunal vice-chair Eric Regehr then issued a $100,000 penalty against the company for falling short of compliance.
“As I noted in the previous decision, X had provided very little evidence and raised only one legal issue with very brief submissions. Here, X has provided considerably more detailed evidence and submissions and has raised new issues. It is unfortunate that X did not put its full case forward the first time it was before the CRT,” Regehr wrote in Monday’s decision.
“Still, I must address the materials before me on their merits with an open mind and without considering myself bound by any of my previous conclusions.”
Is geoblocking enough?
Under B.C.’s law, a platform can be ordered to delete an intimate image that has been shared without someone’s consent. An administrative penalty can be imposed if a company does not comply and additional penalties can be imposed if the non-compliance continues.
X acknowledged the image of the woman has not been deleted, according to the decision.
“It has removed some posts that include the image, but only if those posts violated X’s terms of service. Various X accounts continue to post the image at issue. X continues to geoblock them as TR reports them,” Regehr wrote.
“TR does not dispute this, and it is only the sufficiency of geoblocking she takes issue with.”
The platform argued a British Columbia law can not be used to delete the image because it is a “global platform” and deleting it would have a “global effect,” according to the decision.
“Put another way, X argues that geoblocking is reasonable because globally enforcing a B.C. law about what is allowed to be posted online would violate the comity of nations. When laws could impact the sovereignty of other countries, the principle of comity affects how those laws are interpreted,” Regehr wrote.
“In short, comity may operate to limit a law’s application outside Canada.”
The tribunal reviewed an affidavit from a legal expert, submitted by X, which argued the image in question would not be illegal in the U.S. The expert noted that American courts have, in previous cases, refused to enforce orders pertaining to online content because “Canadian law generally tolerates greater limits on speech than the First Amendment of the United States Constitution,” according to the decision.
The tribunal found X had not complied with the “strict terms” of the order because it had not deleted the image. But the tribunal also found X had demonstrated it had made “every reasonable effort” to comply by geoblocking the image and could not be ordered to pay an additional penalty.
Claim for legal fees denied
The company asked for an order that TR pay its legal fees—which amounted to roughly US$119,000.
The tribunal does have discretion to order un unsuccessful party to pay the other party’s fees, but the decision noted it rarely makes those kinds of orders.
In intimate image cases like this one—where an individual is seeking a penalty against a multibillion-dollar corporation—ordering reimbursement of legal fees could also have a “chilling effect,” Regehr’s decision said.
Further, there was no indication TR’s application was an abuse of process or doomed to fail.
“When TR started this application, she had already been successful at having the CRT order X to pay an administrative penalty once,” the decision said.
“The reason TR was unsuccessful in this application because of complex international legal principles. Overall, I find that TR had a reasonable belief, backed by evidence, that the protection order required X to delete her intimate image. She therefore had a rational and good faith basis for prosecuting this application.”
X filed for a judicial review of the previous tribunal decision ordering the $100,000 penalty but a decision in that matter has not been published.
