In October 2013, I wrote about the recent emergence of revenge porn. This is the increasingly common problem faced by individuals, usually women, on the break-up of a relationship during which they had shared intimate photographs or videos of themselves with their former lover (consensually) and which are then published online (without their consent) in an act of revenge.
In my previous article, I referred to the legislation that was passing through California’s Senate towards the end of last year which had been specifically drafted to address this phenomenon, and I questioned whether similar legislation might find its way into the UK statute books.
It appears that our Government has now decided it is time for urgent action. Responding to a call by the former Culture Secretary Maria Miller for legislation to tackle this “appalling practice”, the Justice Secretary Chris Grayling admitted revenge porn is a growing problem in the UK and on 1 July 2014 he stated the Government’s willingness to having a “serious discussion about this with a view to taking appropriate action in the autumn”.
According to the US based End Revenge Porn campaign, one in ten ex-partners have threatened to expose risqué images of their ex-partner online, with approximately 20 sites operating in the UK where people can view revenge porn images.
At present, in the UK there is no specific criminal offence that addresses the problem of revenge porn. There are civil remedies, including injunctive relief to restrain publication and an order for immediate destruction of the images, but not all victims can afford to go down this route.
The Chief Executive of Women’s Charity Aid, Polly Neate, has therefore urged Mr Grayling to ensure that “victims can get the support of the criminal justice system”. Liberal Democrat peers Lord Marks and Baroness Grender have put forward an amendment to the Criminal Justice and Courts Bill, which would allow for a one-year jail term for publishing intimate images without consent. The offence would only be committed where a reasonable expectation of privacy existed at the time the photographs were taken.
Others have cautioned against revenge porn legislation, with organisations such as English PEN and ARTICLE 19 highlighting the risk of over-criminalisation of a wider range of expression and the preferred suitability of civil remedies.
In parallel, the House of Lords Communications Committee is set to conduct a short inquiry into social media and communications offences before the end of July 2014. The inquiry will consider whether the law currently covering such offences is capable of adapting to the way in which people behave, given the speed of changes in technology. Announced on 1 July 2014, the same day as Grayling’s address to the House of Commons, one might expect the issue of revenge porn to be addressed in the inquiry.
The late arrival of the UK to the drawing board does enable our Parliament to review some of the legislation already in place across the world and, in certain cases, to draw upon some of the early criticisms that have been levelled:
USA
New Jersey and California were the first states to enact specific criminal offences for revenge porn. According to the National Conference of State Legislature (NCSL), so far nine other states have enacted revenge porn laws (Arizona, Colorado, Georgia, Hawaii, Idaho, Maryland, Utah, Virginia and Wisconsin), with Pennsylvania and New York seemingly set to follow. In total, Bills have been introduced and are pending in at least 27 states. A number of these, however, have failed or been adjourned.
The Californian provision has already been criticised as failing to address the “selfie” situation, where the victim takes the photograph or makes the recording him or herself (which, according to a survey conducted by Cyber Civil Rights Initiative, make up 80% of photographs published in “revenge porn” cases). The provision only applies to the person making the recording, leaving anyone who might redistribute the recording, including operators of websites, not covered by the law. Moreover, the defendant must have intended to cause the victim severe emotional distress and this motive-based approach has been criticised as being too onerous on the claimant.
Canada
The Protecting Canadians from Online Crime Act (known as Bill C-13) was introduced in November 2013 to address criminal behaviour associated with cyberbullying. Now at the Report stage, the Bill creates the new offence of non-consensual distribution of intimate images, punishable by a maximum penalty of five years’ imprisonment on indictment or six months’ imprisonment on summary conviction.
Israel
In January 2014, the Knesset criminalised the posting of sexually explicit media content without the depicted person’s knowledge or content. The offence covers content shared on social media and is punishable by up to five years in prison. It is the first country to prosecute as “sexual offenders” those found guilty of posting such content.
Australia
The South Eastern Australian state of Victoria became the first in Australia to make revenge porn illegal by updating its existing laws. The new law will make it an offence to partake in “non-consensual sexting”, i.e. the deliberate sending of naked pictures of someone that isn’t you without that person’s consent.
Brazil
The suicide of 17 year old Julia Rebecca in November 2013 sparked pressure on the government to pass legislation outlawing revenge porn (see here). In April 2014, the “Marco Civil” Internet Civil Rights Bill was signed into law. Internet providers delivering content generated by third parties will be held secondarily liable for infringement of privacy resulting from the disclosure, without consent of its participants, of photos, videos or other material containing nudity or acts of a sexual private character when, after receipt of notification by the participant or legal representative, they fail (within the technical limits of its service) to remove the content. Some have argued the decision to remove content upon receipt of notification should be left to the court. Moreover, the effectiveness of the legislation, it would seem, is limited to domestic publication. Claims brought against internet providers outside the Brazilian jurisdiction are likely to face enforceability issues.
Japan
The increase in revenge porn cases (around 318 cases involving minors reported in 2013) has spurred consideration by Japan’s Liberal Democratic party of legislation to criminalise such acts. The bill proposal, however, is still in the early stages.
Germany
In May 2014, the German Higher Court of Koblenz ruled that ex-partners must delete explicit photographs taken of their former partners when the relationship ends. The woman in question had consented to all of the material being taken but demanded that all of the images and videos in which she appeared be deleted. The Court agreed, but held that her partner did not need to delete photographs of her fully clothed which had little, if any, capacity to compromise her.
The Philippines
The Anti-Photo and Video Voyeurism Act 2009 carries the most severe penalty to date. Those taking, copying, reproducing, selling, distributing, publishing or broadcasting photo or video coverage of sexual acts or private images without the consent of the person(s) involved can face up to a seven year prison sentence and a fine up to five hundred pesos (around £6709).
UK – next steps?
As legislators worldwide strive to keep pace with the potentially devastating social effects of modern technology, it seems to be a question of when and how, rather than if, the UK will join the effort to combat the rise of revenge porn.
With thanks to Alexia Bedat, on secondment with Collyer Bristow, for her excellent research into the recent developments in legislation worldwide.
Alex Cochrane is a Senior Associate in the Cyber Investigation Unit at Collyer Bristow.
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