Revenge porn

Revenge pornography, or revenge porn (informal), is the sexually explicit portrayal of one or more people that is distributed without their consent via any medium.[1] The sexually explicit images or video may be made by a partner of an intimate relationship with the knowledge and consent of the subject, or it may be made without his or her knowledge. The possession of the material may be used by the perpetrators to blackmail the subjects into performing other sex acts, to coerce them into continuing the relationship, or to punish them for ending the relationship. Halder and Jaishankar (2013) define Revenge porn as: "an act whereby the perpetrator satisfies his anger and frustration for a broken relationship through publicizing false, sexually provocative portrayal of his / her victim, by misusing the information that he may have known naturally and that he may have stored in his personal computer, or may have been conveyed to his electronic device by the victim herself, or may have been stored in the device with the consent of the victim herself; and which may essentially have been done to publicly defame the victim".[2]

In the wake of civil lawsuits and the increasing numbers of reported incidents, legislation has been passed in a number of countries and jurisdictions to outlaw the practice, though approaches have varied. The practice has also been described as a form of psychological abuse and domestic violence, as well as a form of sexual abuse.[3]

The term "revenge porn" generally refers to the uploading of this sexually explicit material to humiliate and intimidate the subject, who has broken off the relationship.[1] The term is also often misused to describe non 'revenge' scenarios, including nonconsensual pornography distributed by hackers or by individuals seeking profit or notoriety.[4] The images are usually accompanied by sufficient information to identify the pictured individual, typically names and locations, and can include links to social media profiles, home addresses and workplaces.[5][6] Victims, whose images expose them to workplace discrimination, cyber-stalking or physical attack, can have their lives ruined as a result. Given the practice by some companies of searching for potential sources of bad publicity, many victims of revenge porn have lost their jobs and found themselves effectively unhirable.[7]

Jurisdictions which have passed laws against revenge porn include Israel, Germany, the United Kingdom, thirty-four states of the United States,[8] and the Australian states of Victoria, New South Wales and South Australia.[9]

Background

In the 1980s, Hustler magazine began a monthly feature of reader-submitted images of naked women called "Beaver Hunt".[10] Beaver Hunt photographs were often accompanied by details about the woman, like her hobbies, her sexual fantasies, and sometimes her name.[10] Not all of the women featured in Beaver Hunt submitted their own images and several women sued the magazine for publishing their photographs without their permission, or without verifying information on forged consent forms.[11]

Two decades later, Italian researcher Sergio Messina identified "realcore pornography", a new genre consisting of images and videos of ex-girlfriends distributed through Usenet groups.[12] In 2008, amateur porn aggregator XTube began receiving complaints that pornographic content had been posted without subjects' consent. Several sites began staging consensual pornography to resemble revenge porn, as well as hosting "authentic" user-submitted content.[12][13]

Revenge porn began garnering international media attention when Hunter Moore launched the website IsAnyoneUp in 2010.[14] The site featured user-submitted pornography,[14] and was one of the first sites to adopt the model initiated by Beaver Hunt: IsAnyoneUp often included identifying information, such as the subjects' names, employers, addresses and links to social networking profiles.[14] Activist Charlotte Laws was the first person to speak out against Moore and one of the first people to publicly support revenge porn victims. This prompted backlash from some of Moore's devotees, who stalked Laws and sent her death threats.[15]

In February 2015, the social media site and online bulletin board Reddit announced a change to its privacy policy to ban the posting of sexually explicit content without the consent of those depicted. The announcement was made after a company meeting at which the issue of "illicit pornography—pictures and video—was a burning one".[16] In March 2015, Twitter followed suit with new rules to address the posting of unauthorized content and specifically revenge porn. Starting March 11, Twitter stated it would immediately remove "any 'link to a photograph, video, or digital image of you in a state of nudity or engaged in any act of sexual conduct' that has been posted without consent."[17] According to a Washington Post article, the changes were in response to growing concerns "that [Twitter] has not done enough to prevent bad behavior on its site."[18]

In June 2015, Google announced it would remove links to revenge porn on request.[19] Microsoft followed suit in July.[20] Both have placed forms on-line for victims to complete.[21][22] Together the two organizations account for nearly 90% of the internet search market in the US.[23]

Advocacy

The website endrevengeporn.org, founded by Holly Jacobs, a revenge porn victim, campaigns for the criminalization of revenge porn and considers it to be a form of sexual abuse.[24][25] Jacobs is also the founder of the Cyber Civil Rights Initiative (CCRI), a nonprofit organization that seeks to challenge cyber harassment. Danielle Citron, known for her discourse on cyber harassment as a civil rights issue, is an advisor for the CCRI.[26][27] Mary Anne Franks, CCRI's Vice-President and Legislative & Tech Policy Director, has been heavily involved with legislative and policy efforts to combat revenge porn.[28] Dr. Laura Hilly and Kira Allmann of the Oxford Human Rights Hub have characterized revenge porn as a kind of gendered hate speech designed to silence women. An article of theirs argues that this stifling of free expression is often ignored in debates over revenge porn.[29]

While not solely focused on revenge porn, the older non-profit organization Without My Consent provides legal resources related to it and lobbies to protect the privacy and free speech rights of online harassment victims.[30] Since 2012, there has also been a website Women Against Revenge Porn, calling itself "not an organization or a business", which has been cited as an advocacy group for people exposed in revenge porn.[31] In late 2014, Elisa D'Amico and David Bateman, partners at the law firm K&L Gates, launched the Cyber Civil Rights Legal Project (CCRLP), a project offering free legal help to victims of revenge porn.[32][33]

To better facilitate the introduction of relevant legislation, some anti-revenge porn activists have called upon others in their community to use gender-neutral language more often when discussing the issue.[34] The term "revenge porn" itself has also come under fire. The CCRI for instance prefers the term "nonconsensual pornography".[35] In analogy with "child sexual abuse images" being the preferred term for child pornography, McGlynn and Rackley proposed "image-based sexual abuse".[36] Along with journalist Sarah Jeong, they have argued that it is harmful to associate revenge porn with pornography which revolves around consent. Jeong also considers it a mistake for activists to focus on revenge porn itself as the main problem, rather than the underlying culture which leads to its subjects being socially ostracized.[37]

In the Australian Capital Territory, an electronic petition was started in March 2017 that calls upon the A.C.T. Legislative Assembly to consider criminalizing the non-consensual disclosure of sexual images and videos.[38]

Legislation

Laws banning revenge pornography have been slow to emerge.[39] Contributing factors include a lack of understanding about the gravity of the problem, free speech concerns,[40] belief that existing law provides adequate protection,[40] a lack of care, historically, for women's issues, and "misunderstandings of First Amendment doctrine" (Citron & Franks).[39][41] The American Civil Liberties Union and the Electronic Frontier Foundation have drawn attention to the implications for free speech if legislation is too broad.[42][43][44][45]

Asia

Since 2009, the Philippines has criminalized copying, reproducing, sharing or exhibiting sexually explicit images or videos over the Internet without written consent of the individual depicted.[46]

Israel responded quickly to public pressure in January 2014 and passed a law making sharing sexually explicit videos without the consent of the pictured individual punishable by up to five years in prison.[47] After Israel's bill was passed, it was widely predicted that nearby countries such as Egypt, Lebanon and Saudi Arabia would not introduce similar bills as they have been slow to adopt legislation against sexual harassment in general.[48] However, some commentators have suggested that victims could find recourse in existing laws against pornography, indecency, defamation and invasion of privacy.[49]

Japan passed a bill in November 2014 which made it a crime to communicate "a private sexual image of another person" without consent.[50][51]

Australia

In November 2014, the Australian state of Victoria modified its existing sexting laws. In addition to prohibiting the sending of nude pictures without consent, the amendment also added safeguards to prevent minors from receiving child pornography charges for self-made content.[52][53] The legislation followed an upsurge in the practice and the case Giller v Procopets, which had to be argued on the equity of breach of confidence and tort grounds.[54][55][56] South Australia followed in 2016, with a bill making it illegal to distribute or threaten to distribute invasive nude photographs.[9][57] From July 1, 2017 New South Wales bans revenge porn.[58] A bill has been introduced to ban revenge porn within the Australian Capital Territory.[59]

From 2015 onward, there have been increasing calls across Australia to pass laws designed to combat revenge porn.[60][61] As of 2017, the Attorneys General of Western Australia has confirmed that relevant legislation is being drafted.[9][62]

North America

Canada

In 2014, with the passage of the Protecting Canadians from Online Crime Act, Canada criminalized the "non-consensual distribution of intimate images" that were made under a "reasonable expectation of privacy".[63]

United States

Tort, privacy, copyright, and criminal laws offer remedies against people who submit revenge porn.[64][65] Slightly more than half of all U.S. states have laws expressly applicable to revenge porn: Alabama,[66] Alaska, Arizona, Arkansas, California,[13] Colorado, Connecticut,[67] Delaware, Florida, Georgia, Hawaii, Idaho, Illinois,[68] Louisiana, Maine, Maryland, Michigan,[69][70] Minnesota,[71] Nevada, New Hampshire,[72] New Jersey,[13] New Mexico, North Carolina, North Dakota, Oklahoma,[73] Oregon, Pennsylvania, Texas, Utah, Vermont, West Virginia,[74] Virginia, Washington and Wisconsin.[75] For example, New Jersey law prohibits both the capture and the distribution of sexually explicit photographs and films by any person, "knowing that he is not licensed or privileged to do so" and without the subjects' consent.[76] The law was used to prosecute Dharun Ravi, the Rutgers student who distributed webcam footage of his roommate Tyler Clementi engaging in sexual activity, after which Clementi killed himself.[77] The law has also been used to prosecute several men who allegedly distributed revenge porn of their ex-girlfriends.[78]

Mary Anne Franks, a law professor and constitutional scholar who drafted the model legislation and advised legislators in the majority of the above states, emphasizes that many of these laws are still deeply flawed.[79]

Representatives from the Department of Justice, California's Office of the Attorney General, 50 major technology companies, victim advocates, and legislative and law enforcement leaders joined together in 2015 to form a Cyber Exploitation Working Group, and have announced the creation of a working hub "to combat so-called cyber exploitation – the practice of anonymously posting explicit photographs of others online, often to extort money from the victims."[80]

Criminal prosecutions

Several well-known revenge porn websites, including IsAnyoneUp and the Texxxan, have been taken down in response to actual or threatened legal action.[81] The former was investigated by the FBI after anti-revenge porn activist Charlotte Laws uncovered a hacking scheme associated with the website. Indictments for fifteen felonies were handed down under the Computer Fraud and Abuse Act in January 2014 for the site owner and his accomplices, and the trial was initially set to begin in November 2014 in Los Angeles.[82][83] Hunter Moore, the owner of IsAnyoneUp pleaded guilty to hacking and identity theft in early 2015.[84] Moore was sentenced to two and a half years in prison on December 2, 2015.[85][86]

In December 2013, California Attorney General Kamala Harris charged Kevin Bollaert, who ran the revenge porn website UGotPosted, with 31 felony counts, including extortion and identity theft.[87] In March 2014, because the victim was under eighteen years old in the photos, a court in Ohio awarded damages of $385,000 against Bollaert. In April 2015 Bollaert was sentenced to 18 years in prison.[88] "Sitting behind a computer, committing what is essentially a cowardly and criminal act, will not shield predators from the law or jail", said Attorney General Harris following the verdict.[88] Also in California, a man named Noe Iniguez was given jail time for posting a naked photo of his ex-girlfriend on her employer's Facebook page.[89]

Casey Meyering, the operator of revenge porn website WinByState, was arrested[90] in Oklahoma in 2014 and extradited to Napa County. Meyering's website invited users to submit nude photos of ex-girlfriends and other women, with the photos categorized by state. He would then make the women featured on his website pay $250 to have their photos taken down. There were about 400 images of California women on the website, including at least one in Napa Valley, where California Attorney General Kamala Harris had filed the case. After originally pleading not guilty, on May 8, 2015, the 28-year-old man pleaded no contest to one count of extortion, three counts of attempted extortion, and one count of conspiracy. He was sentenced to three years imprisonment as of early June 2015.

Tort and privacy law

States without specific laws about revenge porn have seen lawsuits alleging invasion of privacy, public disclosure of private fact and intentional infliction of emotional distress against the individuals who uploaded the images.[91] Forty states, including California and New York, have anti-cyberharassment laws that may be applicable to cases of revenge porn.[75]

In February 2014, a US$500,000 settlement was awarded to a Texas woman who brought suit against her ex-boyfriend for posting video and photos of her on the Internet. The state did not have a specific "revenge porn" law at the time of the lawsuit.[92][93][94]

Communications Decency Act §230

Some revenge porn lawsuits have named service providers and websites as defendants alongside individuals who uploaded the images.[95] The Communications Decency Act, also known as §230, shields websites and service providers from liability for content posted by users providing they are not themselves co-creators of the content.[96][97][98] If user-generated content posted to a website does not violate copyright or federal criminal laws, sites have no obligation to remove the content under §230.[99][100]

An estimated 80% of revenge porn pictures and videos are taken by the subjects themselves.[101] Those individuals can bring actions for copyright infringement against the person who uploaded their nude or semi-nude "selfies". American victims may file Digital Millennium Copyright Act takedown notices with service providers.[102] Revenge porn site MyEx.com has been a defendant in a copyright infringement case.[103]

First Amendment and anti-SLAPP

Some free speech advocates object to revenge porn laws on First Amendment grounds, citing the fact that US laws restricting expression have a history of being overturned.[104][105] Journalist Sarah Jeong argues that new criminal laws meant to combat revenge porn are likely to be overbroad, resulting in unintended consequences.[106]

Revenge porn uploaders and websites may also challenge lawsuits using state protections against strategic lawsuit against public participations (anti-SLAPP laws),[107] which allow defendants to counter lawsuits aimed at stifling free speech.[108]

Europe

Many European countries have broad privacy statutes that may be applicable to revenge porn.[109] France also criminalizes the willful violation of the intimate private life of another by "transmitting the picture of a person who is within a private place, without the consent of the person concerned".[110] A German High Court made a May 2014 ruling that intimate photographs of partners should be deleted if the partner so requests.[111]

United Kingdom

England and Wales

In 2012, the English singer-songwriter Tulisa Contostavlos obtained an injunction preventing the distribution of a sex-tape of her and a former lover that had been published on the internet.[112][113] The case was set to include considerable damages, but was settled out of court before it could be considered.[114][115]

In April 2014, UK charities including The National Stalking Helpline, Women's Aid, and the UK Safer Internet Centre reported increased use of revenge porn websites.[111] Women's Aid Charity Chief Executive Polly Neate stated, "To be meaningful, any attempt to tackle revenge porn must also take account of all other kinds of psychological abuse and controlling behaviour, and revenge porn is just another form of coercive control. That control is central to domestic violence, which is why we're campaigning for all psychological abuse and coercive control to be criminalised". In July, Minister of Justice Chris Grayling announced plans to "take appropriate action" to address revenge porn in Britain.[111] A House of Lords Committee, in a report on social media and the law, subsequently called for clarification from the DPP as to when revenge porn becomes a crime.[114][116]

In February 2015 the Criminal Justice and Courts Act 2015, which has a specific amendment dealing with such actions, received Royal Assent. Section 33 of the Act makes it an offence in England and Wales to disclose private sexual photographs and films without the consent of the individual depicted and with the intent to cause distress. There is a maximum sentence of two years imprisonment.[117][118]

On April 23, 2015, a seminar was held in Westminster on the new legislation. The seminar was organised by the Oxford Human Rights Hub and co-hosted with the law firm McAllister Olivarius, the End Violence Against Women Coalition, The University of Durham, and The University of Birmingham.[119][120] The seminar called for the law to be extended to cover activities such as upskirting.

In June 2015 it was reported that Chrissy Chambers, a YouTube star from the United States, was pursuing a civil suit against her British ex-boyfriend who posted sexually-explicit videos taken without her knowledge or consent to Facebook where they were repeatedly shared. Chambers chose to pursue a civil case as the Criminal Justice and Courts Act 2015 does not apply retroactively to content posted prior to its passage.[121][122]

Between April 2015 (the date that section 33 of the Criminal Justice and Courts Act 2015 came into force) and December 2015 the number of reported incidents of revenge pornography in England and Wales was 1,160. However, 61% of them resulted in no action being taken and the number of people prosecuted for disclosing private sexual images during the legislation's first year was 206.

Scotland

In Scotland, revenge porn became a specific offence in April 2016 when the Abusive Behaviour and Sexual Harm Act came into effect.

Northern Ireland

In Northern Ireland, revenge porn was made a crime in February 2016 through the amendment of an existing law.[123]

Malta

A law criminalising revenge porn in Malta entered into force in November 2016. Article 208E of the Maltese Criminal Code punishes whoever, with an intent to cause distress, emotional harm or harm of any nature, discloses a private sexual photograph or film without the consent of the person or persons displayed or depicted in such photograph or film. Such person would, on conviction be liable to imprisonment for a term of up to two years or to a fine of not less than €,3000 and not more than €5,000, or to both such imprisonment and fine.[124]

Minors

If the video or images in question are of individuals who are minors, this can lead to legal action for child pornography[125] as has happened in non-revenge porn related cases involving sexting.[126][127]

Prenuptial agreements

Increasingly, couples are drafting "social media" prenuptial agreements,[128] some of which include provisions relating to revenge porn.[129] Clauses may state that couples agree not to share photos or posts that are likely to harm a spouse's professional reputation.[128]

In other media

The 2017 independent film #FromJennifer tackles the subject of revenge porn. In the film, the main character's acting career is derailed by an ex-boyfriend who posts a video of them online without her consent. When the video goes viral, her manager drops her as a client, and the ensuing humiliation she suffers leads her toward a path of destruction and counter-revenge.

See also

References

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  96. ↑ 47 U.S.C. §230 Protection for Private Blocking and Screening of Offensive Material.
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