On the banning of revenge porn

There is a new petition up at Change.org calling on David Cameron to ban revenge porn:

Revenge porn is the intentional sexual humiliation of ex partners by posting intimate and naked photos/videos on-line. The jilted ex often writes malicious and damning remarks about the subject and provides they personal information to open them up to further abuse from website users.

This is a phenomenon that usually affects women but does affect men also.

The abuse of trust, and public humiliation that is associated with acts of revenge porn is something that should be illegal. Women/men affected are made into involuntary porn stars and the abuse that follows, from users of revenge porn websites, adds to the distress of the victim…

Quite.

Revenge porn is certainly one of the more egregious forms of online douchebaggery to emerge in recent years and almost certainly deserves rather more attention than it’s been getting, at least in this country, however the petition is not one I feel I can support in its present form because it presents one or two practical problems.

For starters there’s the argument that:

It is beyond a shadow of doubt that this type of behaviour is unacceptable, it is a form of harassment, of cyber bullying and an abuse of privacy, and as such, we should follow the example of the US and make it illegal in the UK.

Which would be all very well and good had the US actually made revenge porn illegal, which in actual fact it hasn’t.

To date, just two of the 50 states have enacted legislation that deals directly with revenge porn. New Jersey adopted what is a reasonably stringent statute by US standards, covering the non-consensual disclosure of explicit images, as far back as 2004, while California introduced its own law only last year, albeit one that has been widely criticised for leaving a gaping loophole inasmuch as it doesn’t apply to non consensual distribution of self-taken images. There is, however, no Federal law dealing with revenge porn although there is an ongoing Federal prosecution of the owner of one particular revenge porn website. not because the site published revenge porn but because the owner took this particular brand of scumbaggery to a whole new level by creating a fictitious lawyer who ( for a fee, of course) could arrange for material to be removed from the revenge porn site, adding wire fraud and extortion to the usual “business” model.

Then there’s…

The legal issue in holding people accountable for this type of abuse is that the mediums in place that govern breaches of copyright or electronic abuse are reliant on being able to track the person who put them on-line. The sites that host these images do not log the IP addresses of the users that post them and it is almost impossible to seek a remedy that has them removed. Therefore the websites that host this hateful material should be held accountable, and should they be non-responsive, their hosting companies should be required to remove them.

Again, this is somewhat incorrect.

If, for example, an ex-partner did post an explicit selfie that you’d sent him (or her) to a website operating under US law then there is no need at all to track the person responsible for placing the image online. A takedown notice issued under the Digital Millennium Copyright Act should be sufficient to ensure that the image/video is removed from the offending site and as most of the major search engines (Google, Bing, Yahoo, etc.) are based in the US, these same notices can be issued to ensure that such material is also removed from their search indexes – this also applies to Twitter, Facebook, etc.

If, however, you don’t own the copyright then matters become a lot more more complex but, realistically speaking, the problem of tracing a particular image or video back to its original source to provide a basis for taking out an injunction in a UK court is going to much less of an issue in most cases than the fact that the vast bulk of the Internet lies firmly outside the jurisdiction of British courts. If we consider just the United States, for example, then any attempt by a UK court to apply legal pressure on a US-based website or hosting company will not only run into a problem with the US First Amendment but also s230 of the Communications Decency Act which affords providers of interactive computer services with legal immunity from criminal and civil sanctions arising from information published via those service by third party users, the only exceptions being where the information published gives rise to a Federal criminal liability or where it breaches Federal intellectual property law.

That all, of course, presupposes that our revenge porn site is hosted in the US but what if it isn’t? What if the site is hosted on a Russian web server that’s owned by a company registered anonymously in a tax haven like, say, the British Virgin Islands using a Tongan domain name that itself has been registered through as Hong Kong based domain privacy service. In such a case how are you even going to serve the takedown injunction, let alone enforce it?

To complicate matters further, the World Wide Web is by no means the only distribution route open to a sleazy ex-partner bent on publicly humiliating the former object of their affections. What if the personal porno that you made when things were going well in your relationship finds its way onto a peer to peer distribution system like bittorrent, where it may be shared by hundreds or even thousand of user spread randomly across the entire globe?

How do you even begin to unravel such a distribution network in order to remove the offending video from public sight?

In practical terms these jurisdictional issues limit the scope of what can practically be achieved via the British courts to the removal of images and sites hosted on servers operating in the UK or owned by UK-based companies and the court-ordered addition of revenge porn sites to the same automatic filtering systems that are presently used to try to limit access to child pornography and, in a number of cases, to bittorrent search engine such as Pirate Bay – and I say limit rather than prohibit access here for a very good reason, because these filtering systems are anything but foolproof and can be easily bypassed using nothing more complicated than a web-based proxy.

To put it mildly, you might as well demand free ponies as compensation as demand that the UK government make websites and hosting companies accountable for revenge porn for all that that will actually do anything to tackle the problem, in fact it would be much easier for Cameron to personally buy anyone who finds themselves on the wrong end of revenge porn attack an actual pony, not that I suppose that would make a lot of difference to the victims.

Okay, so let’s take another look at that New Jersey statute, which has been around for a few years and resulted in a number of successful prosecutions, all without falling foul of a First Amendment challenge. Perhaps there’s something we can learn from it.

c. An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he discloses any photograph, film, videotape, recording or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, unless that person has consented to such disclosure. For purposes of this subsection, “disclose” means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer. Notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine not to exceed $30,000 may be imposed for a violation of this subsection.

d.     It is an affirmative defense to a crime under this section that:

(1)     the actor posted or otherwise provided prior notice to the person of the actor’s intent to engage in the conduct specified in subsection a., b., or c., and

(2)     the actor acted with a lawful purpose.

For the avoidance of any confusion here an ‘actor’ is simply a person who carries out a particular act – we’re not picking on theatre folk here, honest – and parts a & b of this statute, which I’ve not quoted above, deal with plain old fashioned voyeurism.

Now that all looks pretty straightforward to me. If you know, or should reasonably have known (because that’s how ‘knowing’ actually works in law as a criminal threshold) that someone hasn’t consented to you disclosing intimate images or video footage to a third party by pretty much any means from sticking it on the internet to sending a photo through the post then it’s a third degree crime, which carries a sentence of 3-5 years on conviction, and a maximum $30,000 fine.

There’s also a second part to this statute which deals with the question of civil liabilities which sets out a civil penalty on $1,000 for each violation of the Act, so if you sent an image illegally to half a dozen friends by text message that’s a basic award of $6,000 in damages unless you did it wilfully or with reckless disregard for the law in which case the court has the option of awarding punitive damages and adding a few zeros on the end of the bill.

You’ll notice that it doesn’t say anything about takedown notices or banning chunks of the Internet, it just hits the person(s) responsible for distributing such images without consent with what is potentially a pretty stiff criminal sanction and, in the part of the Act that I haven’t quoted, opens the door to a civil liability and claim for damages.

Oh, and if you’re wondering about the provision of a defence merely for notifying someone in advance that you intend to publish, that’s down to the First Amendment and the fact that in some circumstances publication of a deeply embarrassing image without consent can amount to constitutionally protected speech, as would be the case were a newspaper based in the state to obtain images of a local politician cavorting with a couple of local prostitutes. Advance notice gives the subject of the images a chance to try and prevent publication by way of an injunction, which allows any First Amendment issues to be put before a court and dealt with without, for example, a newspaper editor running the risk of being hauled off to the local lock-up, etc.

As for other lawful purposes, well you don’t want to criminalise people forwarding such images to the police in order report an offence and the like, so that covers that and other similar bases.

It may not do everything that the people behind this petition want but as laws go, this one seems clear in its intent and scope, so it’s easy to understand what is and is not permissible, and on paper it looks fairly straightforward to enforce.

Something very much like this could be introduced in the UK, with a few relatively minor modifications – we don’t have the US First Amendment to act as a backstop so a British version would probably need to include specific provision for a public interest/responsible publication defence to cover the occasional newspaper expose of a priapic public figure, etc.

Exactly where such a law should sit in terms of UK statutes is open to debate. In New Jersey the statute is listed under invasion of privacy but as I’ve already noted the first two clauses of the Act deal with voyeurism which, in UK law, falls within the ambit of the Sexual Offences Act which means that were it included there then any conviction or caution would also see the perpetrator added the national Violent and Sex Offender Register, which again is a matter to be debated.

So it’s by no mean a simple cut and paste job but the creation of an offence of this kind by extending on from the existing provisions covering voyeurism does strike me as a practical and achievable option and it would offer victims some legal redress against a revenge porn attack by a third party and provide a deterrent against distributing such images without consent.

Okay, so it’s not the perfect solution that the petitioner is asking for but it is a workable solution within the scope of what is possible given the jurisdictional limits of British courts and the British legal system, so if you’re going to pursue anything here by way of a petition or even by looking for MPs to support a Private Members bill, then something equivalent to the New Jersey law is going to be the way to go.

  • The Petitioner

    The petition in its infancy served the purpose of raising awareness, as it’s support has grown it has become necessary to narrow the scope of what it is trying to change. You’re insight is incredibly helpful in establishing the reality of what can be achieved. The aim of the petition is now to incorporate revenge porn into the sex offences act, and also have the course of conduct recognised as sexual harassment (or at least bring about the debate.)

    I would agree with you that it is not feasible to eliminate the websites that host the images as many are based over seas, untouched by our jurisdiction. However the more states make the hosting illegal, the smaller the pool becomes of countries that will allow the facilitation.

    Criticism is always positive if it leads to improvement and so I thank you for your comments.