The Legal Risks of Sending Unsolicited “Nudes”

In today’s digital world, sending images is as easy as a few taps on a screen. But when it comes to sending unsolicited sexually explicit images it is important to know that this behaviour can carry serious legal consequences in Ontario.

This article is a frank discussion of the legal risks of sending unsolicited photos of a sexual nature, often referred to as “nudes.” While the term may sound casual or humorous, the law treats this conduct seriously.

1. Criminal Harassment

Under section 264 of the Criminal Code of Canada, a person can be charged with criminal harassment if they engage in behaviour that causes another person to fear for their safety. Sending repeated or graphic sexual messages or images can possibly cross that line, especially if the behaviour continues after the recipient tells the sender to stop.

2. Sexual harassment

In workplaces, schools, and online platforms, unsolicited sexual images are considered sexual harassment under the Ontario Human Rights Code. If the recipient is a co-worker, subordinate, or even a professional contact, the sender could be subject to a human rights complaint.

Employers may be liable as well if they do not take appropriate steps to address this kind of misconduct in their organization.

3. Civil Lawsuits

Ontario recognizes civil claims for invasion of privacy, such as the public disclosure of private facts or intrusion upon seclusion. A person who receives an unsolicited explicit image could potentially sue the sender for damages, especially in situations where it is part of a pattern of harassing or abusive behaviour.

4. Legislative Reform

There are also growing calls from women’s advocacy groups to update criminal laws to address the phenomenon of “cyberflashing”, which has already been done in the UK and the United States. This would make a single instance of sending an unsolicited and unwanted explicit photograph a criminal offence. Some jurisdictions have also created new laws that also expressly allow civil lawsuits to seek financial compensation in these cases.

5. Professional Misconduct

   
   

Members of regulated professions/ environments such as lawyers, health professionals, teachers, athletes and coaches could face potentially series professional misconduct complaints against them. These complaints can be very stressful and expensive to defend against and can have serious implications for an individual’s career.

6. Employment consequences

There have been situations where an employee has been terminated for cause in their employment for distributing an unwanted sexually explicit images to a colleague. There are also situations where someone not associated with the workplace lets an employer know about the actions of one of their employees outside of the workplace. Such behaviour can be viewed as an employer as being embarrassing to the employer’s brand, contrary to the company’s image and an example of poor judgment and morals of the employee engaged in the behaviour. Even if termination “for cause” may not be possible, the employer may still decide to part ways with the employee by providing them with notice or termination or pay in lieu of termination.

7. Public embarrassment

It is becoming increasingly common for recipients of unwanted sexual images to call out the behaviour in a public fashion on social media, whisper networks or even on increasingly popular apps.

Often these individuals get threatened by defamation lawsuits, although truth is a defence to defamation and “anti-SLAPP” motions are increasingly being used in these situations to have the lawsuit dismissed promptly (although it can be very expensive to defend against defamation claims).

If you are thinking about sending a sexually explicit image without the express consent of the recipient - just don’t. It’s not worth the significant legal and reputational risks. If you are the recipient of such an image, you may wish to consult a lawyer to understand your rights and options.

This blog provides general information only and is not legal advice. If you are dealing with this situation, seek legal advice on your specific situation from a qualified legal professional.