The new revenge porn law: good first step

This article was first published in Police Professional on the 30 April 2015

The new statute that criminalizes revenge pornography helps modernise the law for the age of the “selfie”. It makes clear that society recognises the damage revenge porn can cause, and disapproves. Once people become aware that they can go to prison for two years for distributing an image obtained in intimacy, hiding behind the anonymity of the Internet to humiliate, harass and degrade, there should be fewer cases.

Nevertheless, this good law leaves important gaps, and needs to be strengthened.

The first point is that there is a flood of this material.  A McAfee study (in the US) found that 36% of people have sent or intend to send intimate content to their partners, and that one in ten ex-partners have threatened to expose this material online – which they carry out 60% of the time.  Once such an image gets posted (frequently with identifying information such as name and email address), it often gets reposted on multiple websites, making it extremely difficult or impossible to take down; at least 3,000 websites feature a revenge porn “genre”.  Half of victims (90% are women) are then harassed or stalked online, sometimes in person, by a stranger who has seen the material.  Sometimes the images are sent directly to parents, friends, employers.  We know from our work how devastating victims find this.  Some have lost their jobs, been estranged from their families or gone into deep depression, even committed suicide.  I had a call last week from a 20-year-old woman whose partner posted some intimate photos of her five days after their breakup (before the new law came into effect), with a caption giving the victim’s name and phone number and saying she would “f*** anyone for drugs”. She has been flooded with text messages seeking sex and offering drugs (which she doesn’t use).  The ex-boyfriend says he had nothing to do with it and won’t help take the images down. Jane is upset, overwhelmed, and fears she may have to drop her ambition to be a nursery teacher because no one will ever hire her.

Police and prosecutors are busy.  Resources are already tight and getting tighter. No doubt there will be some high-profile prosecutions under the new law, which I hope will deter future offences. But I doubt whether busy prosecutors will really spend their time cleaning up the mess of thousands of broken relationships – which means in practical terms that the number of crimes will dwarf the number of prosecutions.  So I would like to see a civil law permitting victims to sue perpetrators for the damage they have caused, similar to the dual criminal/civil remedies that the Protection from Harassment Act 1997 provides against stalkers.  That would increase the number of avenues for pursuing perpetrators. Another useful adaptation from that act would permit revenge porn victims to bring injunctions quickly against perpetrators, requiring them to take down their posts and permitting swift imprisonment for repeat violations.

A second weakness of the new law is the requirement that the perpetrator “intend to cause distress” to the person whose image has been disclosed. Much of the harm from revenge porn is caused when the images go viral, after they’re re-posted by people who don’t know the victim – for the sense of power it gives them, for money or just “for kicks”. But if these “secondary distributors” did not intend to cause distress to the specific individual pictured, the new law misses them entirely.  Criminal liability should rest simply on whether the perpetrator knew or reasonably should have known that the sexual images he distributed were non-consensual.  

The biggest gap in the legal framework for attacking revenge porn is the absence of any power to go after website operators who post the material.  They have near-blanket legal immunity for content generated by users, which is intended to safeguard free speech and in practical terms makes it possible for huge aggregators of user-generated content like Google or Facebook to exist. But while victims would of course like to see the people who posted their intimate pictures punished, the most important goal for many is just to get the material off the Internet as fast as possible. Responsible websites like Facebook and Twitter have rules against posting this kind of content, but even good sites vary widely in the speed and transparency of how they handle “takedown” requests. The real problem is that lots of websites never take down anything – their whole purpose is to promote this kind of material and make money by selling ads against it, and many are hosted in countries where British victims have no recourse.

Here we should borrow from the regime that has been effective in controlling child sexual abuse content, or child pornography. The Internet Watch Foundation can ban access to offending UK-based sites altogether, and block access to child pornography from foreign-based sites, and does a good job. So why not apply a similar regime to revenge porn?  I agree that it can be difficult to tell just by looking whether an intimate image of an adult was consensually taken and uploaded. (It’s sometimes hard to tell whether people in child porn images are really children too.) But one answer could be to require all user-generated intimate images of adults to be accompanied by a video of those depicted stating that the content and the uploading were consensual (and showing ID). This too could be abused, and has the downside of implying that all pornography with this outward sign of validity is truly “consensual”.  But it would certainly help to end revenge porn.  

 

 

Jef McAllister is Managing Partner of McAllister Olivarius, a solicitor’s firm in London.