CIPPIC Granted Leave to Intervene in OPC v. Aylo 

CIPPIC has been granted leave to intervene in Privacy Commissioner of Canada v. Aylo (Fed. Ct. File No. T-702-25). The case stems from a complaint to the Office of the Privacy Commissioner of Canada (“OPC”) after an ex-boyfriend uploaded intimate images to Aylo-owned pornography sites without the complainant’s consent.  

At the time of the complaint, Aylo (then called Mindgeek) relied on uploaders to attest they had obtained consent from each person depicted in uploaded content. The OPC found that in the context of such sensitive personal information, third party consent models breached PIPEDA. Instead, meaningful consent must be obtained directly from each person depicted in content before it is uploaded. CIPPIC intervenes in support of this interpretation of PIPEDA, arguing that meaningful consent under PIPEDA must align with how Canadian law treats consent in other areas of law involving sexual autonomy and dignity, including sexual assault and non-consensual distribution of intimate images (NCDII). 

Background 

The case addresses whether pornography platforms can rely on third-party image uploaders to secure the consent of persons appearing in such images. The complainant’s ex-boyfriend uploaded an intimate video without her knowledge or consent. The OPC investigated Mindgeek’s practices and concluded: 

“MindGeek’s consent model, which relies on the uploader to attest that they have obtained consent from each individual whose highly sensitive personal information is depicted in uploaded content, does not constitute reasonable efforts to ensure that meaningful consent has been obtained from those individuals.  

[….] This consent model could only result in devastating consequences for thousands of individuals whose intimate images were shared online without their knowledge and consent.” 

The OPC added: 

“MindGeek must obtain consent directly from each of these individuals.” 

Aylo refused to implement corrective measures, so the OPC filed a Notice of Application in Federal Court. 

The Legal Questions 

The OPC’s Application asks the Court to declare that Aylo contravened s. 6.1 and Principle 4.3 of Schedule 1 of PIPEDA by failing to obtain express, meaningful, and valid consent from all individuals depicted in intimate images uploaded by users to Aylo’s sites. The key question is whether Aylo’s reliance on third parties satisfied PIPEDA’s meaningful consent standard. The Act requires that for consent to be valid it must be “reasonable to expect that an individual…would understand the nature, purpose and consequences of the collection, use or disclosure.”  

CIPPIC’s Intervention 

In its motion for leave, CIPPIC proposed to intervene in support of the OPC’s interpretation of PIPEDA’s consent requirements. Now that leave has been granted, CIPPIC will have an opportunity to make those submissions, which emphasize: 

1. Statutory interpretation demands consistency – Consent under PIPEDA involving sexual personal information must be aligned with and informed by what is required for valid consent under criminal and civil laws dealing with NCDII and other forms of sexual violence. 

2. Privacy’s quasi-constitutional status – The Supreme Court of Canada in Douez v Facebook, Inc., 2017 SCC 33 <https://canlii.ca/t/h4g1b> characterized privacy statutes like PIPEDA as quasi-constitutional in character. Section 3 characterizes PIPEDA’s purpose as recognizing the right of privacy. Courts must accordingly interpret PIPEDA’s privacy protections as incorporating the Charter rights and values of equality, dignity, and autonomy, already recognized in constitutional caselaw recognizing privacy rights, including cases concerning technology facilitated violence and intimate image abuse. 

CIPPIC has a long track record of intervening in privacy and technology-facilitated violence cases, including R v Jarvis, 2002 SCC 73  and R v Downes, 2023 SCC 6. 

Other Interveners 

CIPPIC is one of two interveners in this case. The Women’s Legal Education and Action Fund (LEAF)  was also granted leave to intervene.  

We hope the Federal Court will recognize the usefulness of both interventions in a case that will define the meaning of consent for sexual personal information under Canada’s federal privacy law. 

Documents 

• Investigation into Aylo (formerly MindGeek)’s Compliance with PIPEDA, 2024 CanLII 107207 (PCC) 

• [OPC’s Notice of Application](uploaded file) 

• [CIPPIC’s Written Arguments for Intervention](uploaded file)