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Preventing Revenge Porn

About The Author

Yasmin Daswani (Former Writer)

Yasmin is currently a third year law student at Durham University. Yasmin aspires to be a solicitor and is currently interested in criminal and family law. Outside of her studies, Yasmin is a passionate sportswoman; she is part of her university waterpolo team.

This article was co-written with Helen Pearson.

Thomas Samuel was in a relationship with a woman. The relationship came to an end after an argument, following which the woman posted unpleasant details about Thomas on Facebook. Samuel retaliated spitefully and publicly shared sexually explicit photos of the woman.

This is just one example of a case of “revenge porn”, which is defined as the unauthorised and malicious dissemination of intimate images (photographs or videos) on the Internet. The victim is usually featured in a state of undress or engaging in a sexual activity. While the images may have been taken with the victim’s consent, distribution occurs without the victim’s knowledge or consent. In many cases the publisher is motivated by a desire to punish or control the victim.

No specific offences currently cover revenge porn, and the existing offences that may apply in certain circumstances have been addressed in a previous article that discussed 'cyber bullying'. To recap, the offences include civil law protections under copyright, but few people have the resources or knowledge needed to pursue this route. An alternative offence can be found under the Protection from Harassment Act 1997, which could be used to provide protection in some cases. However, the Act only prohibits a ‘course of conduct’, which requires that the harassment took place on two or more occasions. Most revenge porn occurs as a one off event, thus it is a concern that the existing legal framework does not provide the protection required. 

Further possible protection can be found under s. 1 of the Malicious Communications Act 1988, which outlaws communications by way of letter, electronic communication or articles of any description which are grossly indecent or offensive, obscene or convey a false threat, provided there is an intention to cause distress or anxiety to the victim. Additionally, s. 127 of the Communications Act 2003 outlaws communications sent by means of a public electronic communications network, which includes messages that are indecent or grossly offensive, obscene or menacing, or false, for the purpose of causing annoyance, inconvenience or needless anxiety to another. There is every reason to treat the images involved with revenge porn as indecent and sent for the purpose of causing annoyance and needless anxiety. 

Notwithstanding the above-stated options, data from the police forces in England and Wales demonstrates that from the 149 allegations of revenge porn received in the past two-and-a-half years, only six cases have lead to police action. Following mounting political pressure to criminalise the practice, Chris Grayling, the Justice Secretary, has announced that revenge porn will soon become a criminal offence punishable by up to two years’ imprisonment.

The case for criminalisation 

The dissemination of revenge pornography on a large scale causes distress, humiliation and embarrassment for the victim. It is therefore unsurprising that the exposure can cause serious psychological and emotional damage, particularly since the perpetrator was someone who the victim was close to. In some cases, the victims of revenge porn have unfortunately committed suicide as a result of the psychological impact revenge porn has upon them.

Aside from being damaging to the victim’s psychological state and reputation, there can be devastating impacts on employment prospects and career advancement. Baroness Kennedy, a Labour peer, has spoken of how a female judge in Canada was suspended ‘because her husband put onto the web images taken in intimacy of her’. She spoke of the ‘the concern for the judiciary is that this undermines her authority in the courtroom because these images are available, and bringing the judiciary into disrepute’.

In addition, the gender dimension to revenge porn needs to be addressed. Revenge pornography can be seen as an extension of domestic violence, a new method to control and abuse a partner (see further Scottish Women’s Aid’s Briefing ‘Stop Revenge Porn). Incidents of revenge porn have, so far, been largely performed by men, contributing to the sexual objectification of women and girls. Female social status has historically been tied to chastity and modesty, and therefore women are particularly vulnerable to criticism when their private sex life is made public. In revenge porn, men seek to use these double standards and sexual morals to punish an ex-partner for leaving them. It is therefore important that women feel protected when leaving an abusive relationship, or any relationship; there should be no fear of images provided during a trusting relationship being subsequently publicly distributed following the breakdown of the relationship. 

The requirement for this protection has resulted in the proposal that revenge porn will be a specific offence under the Criminal Justice and Courts Bill, which is currently going through Parliament. Under this legislation, posting or distributing explicit images or videos of any individuals without their consent will be a criminal offence punishable by up to two years in prison. Images shared on social networking sites will be caught by the offence, as will those shared by email, websites and via text message. Victims of revenge porn will be able to report offences to the police to investigate, and officers will work with the Crown Prosecution Service to take forward cases for prosecution. With the new ban, the UK will be joining Israel, the Philippines and multiple US states that have enacted legislation specifically targeting this online trend.

Is Criminalisation Enough?

Whilst criminalisation is one step towards preventing revenge porn, it does not form a full solution. Most perpetrators post images under pseudonyms; identifying and convicting the responsible individuals could prove to be difficult. Additionally, incidents may continue to be unreported, as victims fear that the repercussions of a society that issues blame to victims for initially taking and sharing photos with their then-partner. This view is distastefully demonstrated by Hunter Moore, founder of IsAnyOneUp, a now obsolete revenge porn website:

Oh the girl crying because she sent titty pics to some fool who put it on the Internet… Why would you protect those people… How about this, you take responsibility for your actions and stop pointing the finger at other people.

Regulations and remedies targeting websites are central. The UK Safer Internet Centre has identified between 20 and 30 websites displaying revenge pornography that are available for people to view in the UK. These websites tend to be run for profit, typically through the display of advertisements, and are often extremely popular, thus creating substantial revenues for the website. The websites exploit the images they receive for their personal financial gain. For example, according to Moore, his website was earning around $10,000 per month from advertisement revenue.

Although criminalisation may act as a deterrent, the new UK Bill offers no remedy for the victims who have been affected. Legislating to prevent employers from firing victims of revenge porn is one way of alleviating the victims suffering. As previously mentioned, a Canadian judge had been threatened with removal from the bench after her husband posted photos of her online. The notice of complaint against her states:

The photos could be seen as inherently contrary to the image and concept of integrity of the judiciary.

Law Professor Mary Franks has taken to twitter to speak about this case, pointing out:

The message that’s sending… is that everyone woman needs to be worried that something in her past, something awful someone’s done to her, could come back to hurt her so that she will not get to be the person she wants to be, professionally or in any other respect.

How many potential judges, lawyers, activists, businesswomen, whoever, are being inhibited because they’re being told this message; that you are more likely to have someone do this terrible thing to you and you are more likely to have this come out into the public and be used to punish you? 

Protection against dismissal could be incorporated into employment law under unfair dismissal and anti-discrimination law, but this could be the subject of an entirely separate article. A change to the law in these areas would ensure that the overall impact on victims was addressed rather than solely focusing on criminalising the perpetrators.

The main concern for victims is to have a quick and easy process to ensure that the images or videos are removed immediately. This is currently not available on all websites and on some there is a large monetary charge for the service. In particular, problems arise when content inevitably ends up on websites located abroad. The US is especially problematic because s. 230 of the Federal Communications Decency Act unambiguously provides blanket immunity for website operators and Internet service providers that feature user-generated content, including revenge porn. Thus an American website could ignore the plight of a British revenge porn victim without consequence. It is easier to deal with popular sites such as Google or Facebook who care about their brand, but even then it may take hours to get servers to take down content, or at the very least, remove search engine listings.

One solution is to ensure that revenge porn victims are aware of their existing legal rights to pursue offenders or websites hosting their intimate content. Although copyright is not the perfect solution, with minor changes, it can be used as a powerful tool in tackling revenge porn. Under law, the photographer owns copyright on any photos that they have taken, therefore any subsequent distribution of the photo without permission is an infringement of copyright. Even where someone else took the photo, it can be argued that the victim is at least a joint owner (as they have posed for the photo and "created" the scene). They can therefore enforce these rights against the perpetrator, and can send a copyright notice to Internet service providers hosting infringing content. 

Conclusion

Whilst the Government’s decision to criminalise revenge pornography is a welcome step forward, more could be done to alleviate the victims suffering. The kind of distribution that occurs in revenge pornography is far too difficult for state actors to police alone. We already have laws to protect privacy, so empowering victims with the legal information and the opportunity to enforce them it a key step towards a more just outcome.

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Tagged: Criminal Law

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