⚖️ Deepfakes

Can intimate image legislation combat fake nudes? Plus the federal government puts another pause on MAiD expansion, Ontario looks to overhaul civil procedure rules, and a US associate’s discrimination lawsuit comes up short

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— Dylan Gibbs

TODAY'S DOCKET

4 min read

  • Can intimate image laws tackle deepfakes?

  • Federal government pauses MAiD expansion (again)

  • Ontario’s civil procedure rules prep for potential overhaul

  • US associate’s discrimination lawsuit comes up short

ONLINE HARMS

BC’s new intimate image law: Taylor Swift’s knight in shining armour?

Hooded and bearded male types on a keyboard in a dark room

British Columbia just expanded the protections for revenge porn victims — are the changes enough to combat the latest form of online abuse?

The Intimate Images Protection Act: BC’s new statute, which took effect yesterday, gives victims a fast-tracked mechanism to combat non-consensual sharing of intimate images. The province’s Civil Resolution Tribunal can now order individuals and web organizations to destroy unlawfully posted intimate images, and it can levy daily fines for non-compliance. The statute also gives victims a right to sue their image-sharing abusers for damages.

Joining the club: Most Canadian jurisdictions now have statutes covering intimate image sharing. Ontario, Quebec, and the three territories are the only places where victims still need to find justice through more general forms of privacy litigation.

What about deepfakes? With explicit AI-generated images of Taylor Swift recently circulating on Twitter, Premier David Eby suggested BC’s statute protects against the type of abuse Swift experienced. Yesterday’s provincial press release also says the new law covers deepfakes — like the images that victimized Swift.

Is that broad coverage clear from the statute?

  • 👍 BC’s legislation does go further than many Canadian jurisdictions. It defines intimate images to include images that have been “altered in any way”, mirroring recommendations pitched by the Uniform Law Conference of Canada (ULCC) to capture deepfake content.

  • 👎 But deepfakes aren’t a perfect fit for the word “altered”. The latest generative AI tools don’t just modify existing images — they study training data to learn patterns and create entirely new images. Some would consider deepfakes closer to hyper-realistic digital artwork than alterations of real images.

  • 👎 Alterations aside, the Act only covers images in which the victim has a reasonable expectation of privacy. And that raises some tricky questions for deepfakes. Can a victim expect privacy in an image created by mapping a public picture of the victim’s face onto an explicit image of someone else?

Maybe courts will give BC’s Act the broad interpretation the government now suggests was intended, but the definitions aren’t a perfect fit. If the province wants to tackle deepfakes with certainty, it might need to get cracking on something more … explicit.

HEARSAY ROUNDUP

Canadiana

🩺 Mental illnesses won’t qualify for MAiD this year after all. Eligibility for medically assisted dying was set to expand on March 17, but a special joint parliamentary committee concluded yesterday that the health system isn’t ready for the change. The federal government will be introducing legislation to roll back the scheduled expansion. Foggy on how we got here? I briefly summarized the history of Canada’s MAiD legislation a few months ago.

💡 Ontario is doing a wholesale review of its civil procedure rules. Attorney General Doug Downey said it’s part of the province’s plan to “bring outdated justice services into the 21st century.”

🪫 We’re not just short on judges — Manitoba can’t find enough court clerks either. The province has 14 open provincial court clerk positions, and the shortage is delaying proceedings.

Beyond the border

 💼 A jury cleared US firm Davis Polk & Wardell LLP of allegations that it retaliated against a Black associate for raising discrimination concerns. Kaloma Cardwell sued the firm in 2019 for discrimination and retaliation. The discrimination claims fell off during pre-trial proceedings, but the retaliation claim went to a jury. Yesterday, that jury sided with Team Big Law.

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