Photos of ‘unveiled’ Muslim woman are not intimate images: B.C. tribunal

This image shows a woman wearing a hijab. (Credit: Shutterstock)

Photos of a Muslim woman in which she is not wearing a hijab are not intimate images, a B.C. tribunal has ruled.

The Civil Resolution Tribunal published its decision on the case Friday, dismissing a claim for damages under B.C.’s Intimate Images Protection Act. The legislation allows people to seek up to $5,000 in compensation from individuals who share or threaten to share their intimate images without consent.

The woman, whose identity is anonymized under a publication ban, told the tribunal photos of her without her hijab were shared with court officials, some of whom were male, by her ex-husband in the course of a family law proceeding.

“The applicant says that because she is a Muslim woman, she does not appear unveiled, without her hijab, in front of unrelated men. She argues the involuntary exposure of her hair, arms, or body to unrelated men is equivalent to public nudity,” tribunal vice-chair Andrea Ritchie wrote.

“She says the respondent, who shares her faith, knows this and improperly submitted the photos to the court in an attempt to humiliate and degrade her.”

Ritchie reviewed the photos and found the woman was shown without her hijab in 13 images, but also found the photos did not meet the legal criteria of intimate images.

“I found none of the images depicted the applicant nude, nearly nude, engaged in a sexual act, or exposing her genitals, anal region, or breasts. Although the applicant subjectively believes the images were ‘intimate’ as defined by the IIPA, I found the legislation’s intent was not to cover such a situation,” Ritche’s decision continued.

“I find the applicant’s images without her hijab do not depict her as ‘nearly nude.’”

Additionally, the tribunal found a photo of the woman kissing her ex-husband did not depict a sexual act.

“I find that kissing, although it can be intimate, is not by definition a sexual act. I say this because parents and grandparents kiss their children and grandchildren, friends may kiss to say hello, people may kiss their pets,” Ritchie wrote.

“I also accept that depending on the context, kissing can be a sexual act. In the kiss photo, it could be implied that the parties recently had or were about to have sexual intercourse. However, I find that implication alone is insufficient to say that this photo depicts a ‘sexual act.’”

The woman also alleged violations of B.C.’s Privacy Act and the Canadian Charter of Rights and Freedoms which the tribunal declined to weigh-in on, citing a lack of jurisdiction.