The UK criminalises revenge porn. Some privacy protections.
February 25, 2015 |
Social media and more, usually offshore, salacious sites provide a ready means for a spurned ex or malacious current to place unauthorised private sexual photographs or videos of their opposite number on line for the purpose of humiliation and worse. The moniker given to this invariably hideous and usually cowardly behaviour is revenge porn.
There is a need for some form of protection from authorities. The impact of this behaviour is significant and longstanding, and usually affects women. This is clearly seen in the Economist’s Misery merchants.
It provides:
“HE SAID he would destroy me,” says Annmarie Chiarini, a lecturer from Maryland. In 2011, after a bitter break-up, her ex-boyfriend uploaded dozens of photos of her naked to a porn website, along with her contact details and the name of the school where she works. That made her one of a growing number of victims of “revenge porn”: the non-consensual publication online of explicit images, often by an ex-boyfriend seeking to wound. Ubiquitous smartphones and cheap data packages mean such intimacies are easier to share than they used to be—and more often betrayed after a relationship is ended.
At least 3,000 porn websites around the world feature the revenge genre, and the number is rising, says John Di Giacomo of Revision Legal, a Michigan-based law firm. Women’s charities in Britain and America say more victims are contacting them for help all the time. (Men are occasionally targeted, too.) In Japan the number of cases reported to police more than tripled, to 27,334, between 2008 and 2012.
The consequences for the unwitting subjects can be severe, including damage to their future relationships and careers. Ms Chiarini was harassed online. Others have had abusive strangers turn up at their doors. In the past couple of years several are known to have killed themselves.
Yet victims often find themselves without legal recourse. Many countries have laws against harassment or “malicious communication”, but these generally target repeated actions, direct contacts and verbal or physical threats. Copyright law cannot help if the person who publishes an image also took it. Even if it was snapped by the subject (one survey suggests that such “selfies” make up a large share of all revenge porn), getting it taken down is slow and costly. And during the delay it may be republished elsewhere.
If images were stolen or obtained by subterfuge, a victim may have some redress. In February a jury in Texas awarded $500,000 to a woman whose ex-boyfriend posted a pornographic video he recorded during a Skype call. But few victims bring such cases. Costs can reach $100,000 and legal proceedings will draw unwanted attention to the images. And most countries absolve websites that host user-generated material of legal responsibility for it. (Child pornography is usually an exception.) After “basically begging” a site to remove images of herself, Bekah Wells, a Florida student, found her written appeal and photos featured on its home-page.
Laws against child pornography and hacking can sometimes be pressed into service. In March a court in Ohio awarded a client of Marc Randazza, a lawyer in Las Vegas, damages of $385,000 against Kevin Bollaert, a Californian, since the client was under 18 in photos featured on his site, UGotPosted. Also facing prosecution and possible jail time is Hunter Moore, who the FBI claims paid a hacker to source images for his now-defunct site, IsAnyoneUp.
Mr Bollaert also faces prosecution for extortion, which could lead to years in jail. He is charged with having made tens of thousands of dollars from another site, ChangeMyReputation, which would contact UGotPosted’s victims to alert them to the publication of their images—and offer to get them removed for $300 or more. Klein Investigations and Consulting, a Texan firm, says that since the beginning of last year it has found seven American sites that offer to remove content if the subject pays. All have since closed in the face of litigation or prosecution. It has also sent evidence to Interpol relating to eight similar operations based elsewhere.
But site owners can still make money, if they are careful, by running paid ads for “arbitration” or “reputation management” firms that negotiate with sites on behalf of victims. According to Mr Randazza, if customers can choose between several firms that are independent of the site publishing the images and do not guarantee results, extortion charges are unlikely to stick.
Ex-deletion
As lawmakers and politicians around the world wake up to the spread of revenge porn, more are trying to craft laws against it. Israel has gone furthest: in January the Knesset voted unanimously to make posting intimate images without the subject’s agreement count as sexual harassment, punishable by up to five years in jail. Previously such actions were regarded as mere violations of privacy. Police rarely investigated, let alone sought to prosecute.
The new law has changed attitudes, says Yifat Kariv, who sponsored it in the Knesset. But establishing beyond doubt who first disseminated an image is hard. An ex-boyfriend may claim, for example, that the images were stolen when his computer was hacked. In the past four months Israeli police have opened files on 55 cases, 37 of which are still being investigated. So far just one has led to an indictment.
Britain is also planning revenge-porn laws. Chris Grayling, the justice secretary, told parliament on July 1st that the government may include them in a criminal-justice bill planned for the autumn. Julian Huppert, a Liberal Democrat MP who campaigns on the issue, thinks that even if prosecution is rare, the mere possibility will act as a deterrent. Many of those who post revenge porn are quite open about it, he points out. “They think it’s funny.”
New law is being shaped in Germany, too. In May a court in Koblenz ordered a man who possessed erotic photos and videos of his ex-girlfriend to delete the most explicit ones on her request—though they had been shot with her permission and he had neither shared them nor threatened to do so. The potential for harm to her outweighed his rights as the images’ owner and copyright holder, the judge said. Both are likely to appeal: she wants them all deleted, even the tamer ones, and he is unwilling to give up any of them.
American politicians and lawmakers are just as keen as those elsewhere to tackle a new menace that has captured broad public attention. Several states, including California and New Jersey, have passed laws targeting revenge porn, and more are planning them. Jackie Speier, a Californian congresswoman, is pushing for a bill that would make online dissemination of the material a federal crime.
But these efforts, Mr Randazza says, may end up producing nothing more than “chicken-soup laws—they make everyone feel a little bit better but they don’t really do anything.” The difficulty is crafting laws that manage to criminalise at least the most egregious cases without falling foul of the protections for free speech guaranteed by the constitution. Those that are drafted too broadly may eventually be overturned by the Supreme Court, says Viktor Mayer-Schönberger, a specialist in global internet law at Oxford University, just like an overly sweeping federal law passed in 1996 after a panic about online child pornography.
Free-speech campaigners also fret about cases such as that of Anthony Weiner, a former American congressman with an apparent penchant for sending women photographs of his penis. A loosely drafted law could have made it impossible for his targets to publish the evidence without committing a crime. When novel harms arise, says Mr Mayer-Schönberger, “legislators feel they need to act. And typically, they overreact.”
Since that article was published the United Kingdom has just criminalised the conduct with Criminal Justice and Courts Act 2015. The specific offence is found at section 33 which provides
33Disclosing private sexual photographs and films with intent to cause distress
(1)It is an offence for a person to disclose a private sexual photograph or film 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.
(2)But it is not an offence under this section for the person to disclose the photograph or film to the individual mentioned in subsection (1)(a) and (b).
(3)It is a defence for a person charged with an offence under this section to prove that he or she reasonably believed that the disclosure was necessary for the purposes of preventing, detecting or investigating crime.
(4)It is a defence for a person charged with an offence under this section to show that—
(a)the disclosure was made in the course of, or with a view to, the publication of journalistic material, and
(b)he or she reasonably believed that, in the particular circumstances, the publication of the journalistic material was, or would be, in the public interest.
(5)It is a defence for a person charged with an offence under this section to show that—
(a)he or she reasonably believed that the photograph or film had previously been disclosed for reward, whether by the individual mentioned in subsection (1)(a) and (b) or another person, and
(b)he or she had no reason to believe that the previous disclosure for reward was made without the consent of the individual mentioned in subsection (1)(a) and (b).
(6)A person is taken to have shown the matters mentioned in subsection (4) or (5) if—
(a)sufficient evidence of the matters is adduced to raise an issue with respect to it, and
(b)the contrary is not proved beyond reasonable doubt.
(7)For the purposes of subsections (1) to (5)—
(a)“consent” to a disclosure includes general consent covering the disclosure, as well as consent to the particular disclosure, and
(b)“publication” of journalistic material means disclosure to the public at large or to a section of the public.
(8)A person charged with an offence under this section is not to be taken to have disclosed a photograph or film with the intention of causing distress merely because that was a natural and probable consequence of the disclosure.
(9)A person guilty of an offence under this section is liable—
(a)on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine (or both), and
(b)on summary conviction, to imprisonment for a term not exceeding 12 months or a fine (or both).
(10)Schedule 8 makes special provision in connection with the operation of this section in relation to persons providing information society services.
(11)In relation to an offence committed before section 154(1) of the Criminal Justice Act 2003 comes into force, the reference in subsection (9)(b) to 12 months is to be read as a reference to 6 months.
(12)In relation to an offence committed before section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 comes into force, the reference in subsection (9)(b) to a fine is to be read as a reference to a fine not exceeding the statutory maximum.
The prosecution will need to establish an intention to cause distress. There are some significant defences being
- it was reasonably necessary to disclose the image for the purposes of preventing, detecting or investigating crime .
- the disclosure was made with a view to publication of journalistic material and a reasonable belieF that the publication would be in the public interest.
- a reasonable belief that the photograph or film had previously been disclosed for reward either by the individual depicted or by another and there is no reason to believe that the disclosure was made without the consent of the depicted person .
At first blush it would appear that the defences are tightly drawn and would exclude most purveyors of this dark practice. This seems to have coincided with the Reddit nad Blogger tightening up the rules on what can be pasted on their sites as reported in Reddit and Blogger tighten up rules on pornography which provides:
Social networking and news site Reddit has said it will remove photos, videos and links with explicit content if the person in the image has not given permission for it to be posted.
Google, meanwhile, is going to ban most nude photos and video from publicly accessible sites on its Blogger service.
The crackdown marks a shift in attitude for two services that have traditionally been freewheeling forums.
The lax approach has opened the door for nude and sexually explicit photos and video to be posted on Reddit and Blogger, even if the subjects featured in the images intended them to remain private.
Until now, Reddit has had a hands-off approach to privacy, largely allowing its 160m users to police their own forums within certain guidelines such as no child pornography or spam.
The change comes about six months after hackers obtained nude photos of Jennifer Lawrence and other celebrities and posted them to social media sites including Reddit and Twitter.
Without specifically calling out Reddit or Twitter, Lawrence lashed out at the sites that permitted nude photos to be posted of her. She likened the unauthorised use of photos of her body as a “sex crime.”
A Tuesday posting signed by Reddit interim CEO Ellen Pao and other company executives said the shift is an effort to help grow the site “for the next 10 years and beyond.”
Effective 10 March, Reddit will prohibit any photograph, video or digital image of a person who is nude or engaged in a sexual act if the subject has not given permission for it to be used. Anyone who wants an image of themselves removed from the site can email contact@reddit.com.
Reddit, which was spun off from Conde Nast’s Wired Digital in 2012, announced its new policy on the opening day of a high-profile trial airing Pao’s allegations that she was a victim of sexual discrimination while working as a junior partner at one of Silicon Valley’s best-known venture capital firms, Kleiner, Perkins, Caufield and Byers.
Pao is seeking $16m in damages. Kleiner Perkins has denied the allegations.
Google’s Blogger service is giving its users until 23 March to delete sexually explicit or “graphic nude” images from their sites.
If they don’t, their sites will be switched to private mode to restrict access to the owner of the blog and those that have received an invitation to visit it.
Effective 23 March, Blogger will no longer allow most nude photos to be posted on anything other than a private site. The only exceptions will be for special circumstances, such as nudity depicted in “artistic, educational, documentary, or scientific contexts,” according to an explanation on Blogger’s site.
Social media sites have varying policies on nudity. Facebook prohibits images containing nudity altogether. Twitter doesn’t mediate legal content but recommends that content with nudity or violence be marked as sensitive. It also lets users flag questionable content for review.
In the United States the Federal Trade Commission has taken some regulatory action banning an operator in the business of hosting revenge porn, as set out in the media release Website Operator Banned from the ‘Revenge Porn’ Business After FTC Charges He Unfairly Posted Nude Photos which provides:
The operator of an alleged “revenge porn” website is banned from publicly sharing any more nude videos or photographs of people without their affirmative express consent, under a settlement with the Federal Trade Commission. In addition, he will have to destroy the intimate images and personal contact information he collected while operating the site.
The FTC’s complaint against Craig Brittain alleges that he used deception to acquire and post intimate images of women, then referred them to another website he controlled, where they were told they could have the pictures removed if they paid hundreds of dollars.
“This behavior is not only illegal but reprehensible,” said Jessica Rich, director of the FTC’s Bureau of Consumer Protection. “I am pleased that as a result of this settlement, the illegally collected images and information will be deleted, and this individual can never return to the so-called ‘revenge porn’ business.”
According to the FTC’s complaint, Brittain acquired the images in a number of ways, such as by posing as a woman on the advertising site Craigslist, and offering nude photos purportedly of himself in exchange for photos provided by women. When women provided him with the photos, Brittain posted them on his site without their knowledge or permission.
In addition to collecting and posting the images himself, Brittain solicited viewers of his site to anonymously submit nude photos of people to his site, according to the complaint. He required submissions to include sensitive personal information about the people in the photos, including their full name, town and state, phone number and Facebook profile.
The complaint also alleged that Brittain offered a “bounty system” on his site, wherein users could offer a reward of at least $100 in exchange for other users finding pictures and information about a specific person. Overall, Brittain’s site included photos of more than 1,000 individuals, according to the complaint.
Women whose photographs and information were posted on the site contacted Brittain to have the information removed, citing the potential harms to their careers and reputations. In addition, women cited unwelcome contact from strangers who had discovered their information on Brittain’s site. The complaint notes that in many cases Brittain did not respond to the women’s requests to remove the information.
In fact, the complaint alleges that Brittain’s site advertised content removal services under the name “Takedown Hammer” and “Takedown Lawyer” that could delete consumers’ images and content from the site in exchange for a payment of $200 to $500. Despite presenting these as third-party services, the complaint alleges that the sites for these services were owned and operated by Brittain.
Under the terms of the settlement, Brittain is required to permanently delete all of the images and other personal information he received during the time he operated the site. He will also be prohibited from publicly sharing intimate videos or photographs of people without their affirmative express consent, as well as being prohibited from misrepresenting how he will use any personal information he collects online.
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