Action Sheet on Revenge Porn

Revenge porn, or non-consensual pornography, is a fast-growing form of violence in cyberspace. McAllister Olivarius endorses the efforts the UK government has made to criminalise revenge porn. However, a satisfactory legal regime in this area must also offer a clear civil remedy for victims to obtain justice against perpetrators, harassers and website operators.

 

What is revenge porn?

Revenge porn, or non-consensual pornography, is the act of publishing a private sexual image of someone without his or her consent. While not entirely new, revenge porn has exploded with the growth of the Internet and the prevalence of camera phones. The motives behind it are usually personal, often to retaliate for a relationship breakup. However, there are also examples of people (including a number of celebrities) whose email or social media accounts have been hacked by strangers who then steal and publish their intimate images.

 

Why is it harmful?

In most revenge porn cases, the images are recorded within private, intimate relationships, and most victims never imagined that the images would be shared with strangers. Once they get online, stopping their circulation can be exceedingly difficult. Often, the posts include private information including the victim's name, address, phone number, employer and links to social media profiles. Anonymous harassers spread the material "for kicks" or to further humiliate the victim, even though they have never met. The result is that many porn victims find the material has been sent to their family, friends, colleagues and employers or potential employers, either by the perpetrator by unknown third parties. 

Revenge Porn by the Numbers

  • 1 out of 10 ex-partners has threatened to post naked images of their exes online. 60% of them carry out the threat.
  • 80-90% of revenge porn victims are women.
  • 93% of victims suffer significant emotional distress.
  • 49% of victims are harassed or stalked online by someone who saw the material.
  • 3,000 pornography websites feature a "revenge porn" genre.

Information retrieved from: End Revenge Porn (US), the Cyber Civil Rights Initiative (US), the Revenge Porn Helpline (UK), McAffee and the Economist.

Examples include a man who lost his job after an angry ex-lover, a married woman, sent his boss a picture of his intimate body parts. Another example is a client of McAllister Olivarius who discovered, many years after the fact, that her ex-boyfriend had raped her while she was intoxicated. He filmed the violence and then posted it online years after their breakup. The video included her full name and seriously interfered with her career. Anonymous harassers spread the videos and kept the abuse going.

Consequences of Revenge Porn

  • Harassment by strangers
  • Anxiety and depression
  • Difficulties in personal relationships
  • Loss of employment or troubles finding employment

 

Action Points

1) Civil Remedy to Permit Compensation for Pain and Harm Suffered

Sexual violence cases have very low prosecution and conviction rates. Resources devoted to courts and prosecution are shrinking under government austerity, and prosecutors have trouble keeping up with the number of rape, sexual assault and domestic violence cases they must already handle. Police and prosecutors need training in this evolving area—"What's Twitter?" is what one victim heard when she tried to report to the police. So while the criminal law against revenge porn is extremely welcome, it is not likely to protect everyone who needs it. Making revenge porn a violation of civil law too would help fill the gap. Civil law requires a lower burden of proof than a criminal conviction ("balance of probabilities" rather than "beyond a reasonable doubt"). And a civil suit allows victims to claim compensation from the perpetrator for the pain and economic harm they have endured. The civil remedy could be drafted similarly to chapter 3 of the Protection Against Harassment Act 1997. Protection Against Harassment Act 1997.1

 

2) Definition: Focus on Harmful Actions, Not Intentions or Distress

The revenge porn in England and Wales outlaws the act of disclosing private sexual photographs and films if the disclosure is made (a) without the consent of an individual who appears in the photograph or film, and (b) with the intention of causing that individual distress. This definition should be changed. Instead of focusing on the victim's distress and the offender's intention, which are unnecessarily subjective, it should centre on the simpler test of whether the victim gave consent to post the images.2

 

3) Anonymity for Victims

Since revenge porn is a crime of sexual nature, the right to anonymity for the complainantas established in Chapter 1 of the Sexual Offences (Amendment) Act 1992should apply. Furthermore, this right should also apply to possible civil proceedings. Having to sue under one's real name can give the harassment more publicity.

 

4) Threats to be Taken Seriously

According to a survey, one-tenth of ex-partners have threatened to post naked images of their exes online.3 Given the devastating consequences of revenge porn, such threats ought to be criminalised. Under the current law, Chapter 4 of the Protection from Harassment Act 1997 offers protection from being repeatedly put in fear of violence, and that standard should also apply to threatening to disclose intimate images. In the case of threats, courts should be allowed to order the deletion of such images.4

 

5) Remove the Content from the Internet

Current law offers only limited ways for victims of revenge porn to get the images taken down. Operators refuse to remove harmful posts (from which they profit through online advertising or subscriptions) and sometimes even demand payment from victims in return for doing so.5 Copyright infringement has proved to be one of the few useful tools for getting images taken down, but offers spotty protection because often the perpetrators have taken the image and own the copyright. The civil law should allow a victim to file for an injunction, requiring the perpetrator to take down the image at stake and to post no additional ones. This way the images could be removed while the criminal case works its way through the courts. In some cases this swift remedy may prevent the wide circulation of the images, which is a key goal of victims. Additionally, the civil law should allow victims to seek compensation from website operators who refuse to remove non-consensual pornography.

The law should also enable law enforcement agencies to block access to revenge porn websites via service providers. There are already mechanisms in place for identifying and taking down child sexual abuse images or child pornography. There are already mechanisms in place for identifying and taking down child sexual abuse images or child pornography. The Internet Watch Foundation can swiftly close down access in the UK to websites hosting child sexual abuse images, and—in partnership with other hotlines and police—take action to remove child sexual abuse material no matter where the website is hosted internationally. Developing a similar infrastructure for removing revenge porn images that receive complaints—and a law that requires this—would be a sensible reform. It is worth taking notice of the 2015 Harmful Digital Communications Act of New Zealand6 which introduces a new criminal offence "causing harm by digital communication" and allows District Courts to order a range of remedies for civil cases, such as takedowns orders, cease and desist orders, name suppression orders and orders to publish corrections and apologies.

 

6) Eliminate Employment Discrimination Against Victims

Employers increasingly rely on online information in making firing and hiring decisions. As a result, victims of revenge porn and cyber stalking frequently have trouble finding and keeping jobs, as search engine results display the abusive images and sometimes also false information about the individual.7 This hurts the individuals and their families, businesses and society at large. It is important to raise awareness amongst employers about the nature and scope of revenge so they can make informed decisions about employing victims. This could include encouraging employers to give employees or potential employees the opportunity to respond to whatever derogatory information was found on them online. New laws should be considered to guarantee this.

 

If you think you've been a victim of revenge porn or online harassment, it is important that you seek prompt legal advice. For a confidential discussion of your legal options, contact us on +1 (518) 633-4775, or info@mcolaw.com.


1See: http://www.legislation.gov.uk/ukpga/1997/40/section/3.

2See briefing prepared by Professor Clare McGlynn, Durham University and Professor Erika Rackley, University of Birmingham: https://www.dur.ac.uk/resources/glad/McGlynnRackleyPubofPrivateSexualImagesBriefing.pdf.

3See: http://www.mcafee.com/us/about/news/2013/q1/20130204-01.aspx.

4A german court ordered a man to delete intimate images in his posession of his ex-girlfriend. He hadn't abused them or threatened to; the judge nevertheless agreed that her privacy rights in them were paramount (see: http://wwww.economist.com/news/international/21606307-how-should-online-publication-explicit-images-without-their-subjects-consent-be.

5Intentions can be as obvious as in the case of a Californian who operated a special website that would contact victims of his own revenge porn website and offer to remove the post for $300 or more (see: http://wwww.economist.com/news/international/21606307-how-should-online-publication-explicit-images-without-their-subjects-consent-be.

6See: http://www.legislation.govt.nz/act/public/2015/0063/latest/whole.html.

7See e.g. *Hate Crimes in Cyberspace* by Danielle Keats Citron. 2014, p. 1-31 and 181, and *The Offensive Internet* by Saul Levmore and Martha C. Nussbaum (eds.). 2010, p. 15-30. Chapter by Daniel J. Solove.