Daily Mail publication of intimate images of Congresswoman Katie Hill’s sparks a conversation about ISP liability in revenge pornography cases – Colette Allen

14 11 2019

Katie Hill, the former Representative for Los Angeles, quit Congress last Thursday after intimate photos were leaked by her ex-husband and an investigation was launched into whether she had a relationship with her subordinate. In a tearful resignation video, Hill vowed to dedicate the rest of her career to fighting revenge pornography and getting justice for victims. In the UK, the Daily Mail stuck its nose in by displaying the images on their website last week. This incident seemed as good a time as any to look into what avenues survivor-victims of revenge pornography can take under current English and Welsh law.

UK law relating to revenge pornography, whilst recently upgraded, remains insufficient.

Revenge pornography was criminalised in 2015 under Criminal Justice and Courts Act. Under s.33(1) of the Act, it is an offence to ‘disclose a private sexual photograph or film if the disclosure is made (a) without the consent of the individual who appears and (b) with the intention of causing that individual distress.’ According to s.33(8), the intention to cause distress has to be proven, and will not be assumed merely because that was the natural or probable consequence of the disclosure. The Act also provides three possible defences. These are based on the prevention of crime (s.33(3)), a journalistic duty to provide material of ‘public interest’ (s.33(4)) and if the defendant reasonably believed that the photo was commercial and not disclosed without the consent of the victim-survivor (s.33(5)). In the Hill fiasco, the Daily Mail is safe under the s.33(4) defence; the lack of a statutory definition of ‘public interests’ means they would be likely to convince a court that a pixilated image of a three-way is information in which the public is interested (see Jameel v Wall St Journal Europe, Baroness Hale at [147]).

The criminalisation of revenge pornography is a great step forward in tackling the modern phenomenon, and not one we should take for granted. Other common law countries like the US are lacking in this regard, much to the criticism of leading scholars and victim-survivors alike.(Danielle Keats Citron and Mary Anne Franks Criminalizing Revenge Porn, 49 Wake Forest Law Review 345 (2014). The law has a bad track record of regulating sexual offending, given that it often takes place in private, and with no witnesses beyond the victim and the alleged offender. Nor has it been particularly good at addressing harms that take women and girls as their primary targets – 75% of 1800 calls made over a 6 month period to UK’s Revenge Porn Helpline are women (Government Equalities Office Press Release “Hundreds of Victim-Survivors of Revenge Porn seek support from Helpline” 20 August 2015). On top of this, the fact that revenge porn involves the internet and social media means that the public, law enforcement and the judiciary often struggle to understand the mechanics of the conduct and the devastation it can cause. Revenge pornography is thus a ‘perfect storm’ for law enforcers to grapple with, and the fact that we have any attempt to tackle it head on should be applauded.

But we should not get complacent. Revenge pornography wreaks havoc on the victim-survivor’s life. Just look at Katie Hill. Her time in Congress was ripped from her, and four days after her resignation she was sent an envelope containing white powder triggering an office lockdown and emergency response from the Los Angeles Fire Department. This is no anomaly. Revenge pornography victims frequently describe facing stalking, loss of professional and educational opportunities, and psychological damage, as well as negative consequences for speaking out, including the risk of increased harm (Annmarie Chiarini, I Was a Victim of Revenge Porn. I Don’t Want Anyone Else to Face This The Guardian (19 November 2013)

As revenge pornography affects women and girls more frequently, victim-survivors also face the (sadly) predictable backlash of a patriarchal society. Victim blaming is all too common; “when you take a nude photograph of yourself and you send it to this other person, or when you allow someone to take a nude photograph of you, by your very actions you have reduced your expectation of privacy” (Callie Millner, Public Humiliation over Private Photos, quoting a revenge porn operator,SFGate).  Such blatant disregard for the doctrine of contextual privacy[6]  undermines women’s autonomy and is closely tied to idiosyncratic, dangerous views about consent with regard to sex. While most people today would recoil from any suggestion that a woman’s consent to sleep with one man can be taken as consent to sleep with all of his friends, this is the very logic of revenge porn apologists.

It is unclear whether the Daily Mail could or will be liable for revenge pornography. Nevertheless, exploring this avenue has value for the thousands of survivor-victims for whom it will not be worth going after a penniless and vengeful ex. The Daily Mail can be liable as a publisher, either for revenge porn if the offence’s elements are made out, or for the tort of Misuse of Private Information (MPI) ( Successful revenge pornography suits under MPI have been made out, see the YouTube star Chrissy Chambers successful action in the High Court) or even possibly the Wilkinson tort. The tort of wilful infringement of the right to personal safety was revived for the twenty first century in Rhodes v OPO [2015]. Of the three elements necessary to make out a Wilkinson claim (conduct, mental and consequence), revenge pornography action would relate to the first and second element. The Daily Mail’s uploading of Hill’s intimate images without her consent might well be defended by the words of Lady Hale and Lord Toulson in Rhodes itself; “freedom to report the truth is a basic right to which the law gives a very high level of protection.” (Rhodes v OPO [76]). But it could just as easily be seen as “conduct directed towards the claimant for which there is no justification or reasonable excuse.” (Ibid [74]) It would also take little imagination to see how, in most instances of revenge pornography, a court could impute from the facts the necessary mental element of intention to cause physical harm or severe emotional distress (Ibid [81 and 87])

But there is a further issue here with Internet Service Providers (ISPs). What should one do in instances where revenge pornography is uploaded by an impecunious defendant to a host website whose domain owner cannot be identified (or for some other reason cannot be sued). In those circumstances, should it be possible to sue the ISP? Godfrey tells us it is.

Once aware of the offending content, the ISP can be held liable for a defamatory message from an unknown third party if it fails to remove the content after a ‘reasonable period’. Godfrey still presides over this area, but the 90s case pre-dates the very idea of memes and content going ‘viral.’ While Tamiz v Google [2013] went someway to advance the responsibility that servers should bare in certain circumstances, the ‘reasonable’ five-week timeframe is hardly any use to a victim-survivor watching their intimate photos reach thousands of screens in just a few seconds. A revenge pornography action against an operator would do well to convince the court that this period must be dramatically reduced. The longer the period allowed for before ISP removal, the more people will see it. It’s simple.

Consider Erin Andrews, the American sports reported whose stalker secretly filmed her dressing and posted the videos online. Google Trends data revealed that just days after the release of the videos, most of America began searching for some variation on ‘Erin Andrews peephole video.’ (Steve Johnson, Erin Andrews’ Nude Video Coverage Full Hypocrisy, Chicago Tribute, July 23, 2009) It is fair to say Andrews’ celebrity played into her going viral, but her story is not unique. Countless survivor-victims suffer the same fate, harmed each time a person views their intimate images. Forcing ISPs to remove the problematic content quicker is an obvious first step. A landmark settlement for revenge pornography in Northern Ireland last year suggests such a case may be on the horizon. An unnamed 14-year-old sued Facebook when she discovered that naked images of her were viewable on a “Shame” page hosted on Facebook. Thankfully for the child, the civil case was settled out of court and the girl received a financial settlement from Facebook. This does, however, mean uncertainty remains in the law; it is not clear how a successful MPI action against Facebook would play out.

The recent developments in the doctrine of the Right to Be Forgotten may well indicate that it would go in the survivor-victim’s favour. The right to have personal information and data deleted from a website, so long as its removal does not interfere with others’ right to free expression, was most recently confirmed by the CJEU in the Google v CNIL case.  The EU’s E-commerce directive protects social media companies when the “innocence” or “neutrality” of their system is not in question. But where it is obvious that the system is clearly being abused (such as use of the sites specifically for despicable acts of shaming, child abuse and terrorism) social media firms cannot hide behind this passivity rule. Alan Reid has pointed out that while Facebook, Google etc. are actively altering the flow of information to its users via algorithms, and encouraging third parties to create content, it becomes harder for them to legally argue that they are acting without any editorial control.

Danielle Keats Citron and Mary Anne Franks have pointed out that most lawyers do not know this area of law and are not prepared to handle the trickiness of online harassment evidence (Citron and Franks, Criminalizing Revenge Porn (p.358).  But uncertainty in the law is no excuse to ignore it. One thing is certain: revenge porn is a messy business that needs cleaning up. Personally, I’m not all that keen on the recent measures brought in by Facebook that invite users to send intimate pictures to it for verification and removal. I would prefer to see criminalisation and civil litigation handle this, and I can’t help but think a couple of hefty pay outs are likely to have a better chance of minimising instances of revenge pornography.

Colette Allen is the anchor of ‘The Media Law Podcast Newscast’ twitter: @medialawpodcast


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