The internet age has brought with it many new challenges for the law and human rights, but few are as insidious as the phenomenon known as ‘revenge porn’.
What is ‘sexting’ and ‘revenge porn’?
Sexting involves the sharing, typically by a mobile device, of sexually explicit images, videos or messages from one person to another. Sexting between consenting adults is, in itself, completely harmless, but it can create a risk of the ‘sexted’ material later being used as revenge porn.
Revenge porn is when a person shares, usually through an online medium, sexually explicit images or videos of another without their consent for the purposes of revenge. Figures from a US study indicate that 90% of revenge porn victims are female.
In truth, revenge porn is just a type – albeit the most notorious – of ‘non-consensual porn’, where erotic material is shared against the subject’s will. Revenge for a break-up is a common motivation behind this behaviour, but it can also be done to make money, as a form of intimidation, or even just for a ‘laugh’.
Why is it such a problem?
The consequences of revenge porn for the victim are devastating. Many develop symptoms of anxiety and depression, stemming from the betrayal of trust and constant fear that they might be recognised from explicit images. In some cases this material may be shared with a victim’s work or family, leading them to be fired and sometimes shunned by relatives. Victim-blaming is rife in cases of revenge porn, which only adds to the distress suffered. It’s clear that extreme harm is suffered by victims of revenge porn.
Perpetrators also have a tendency to share the victim’s personal details, putting them and their family at risk of being stalked or worse. In one case, Charlotte Laws received death threats after an image of her daughter was posted to a now-defunct revenge porn website.
As younger generations become increasingly tech-literate, there is an emerging problem of minors creating and sharing explicit images that find their way onto the internet. Once online this material is nearly impossible to control, and can be easily accessed by pedophiles hidden behind a veil of anonymity. Indeed, the Lanzarote Committee of the Council of Europe has recently announced a new round of monitoring that will focus in part on this specific issue.
The human rights angle
There are two competing rights that lie at the heart of this problem: the right to a private life guaranteed by Article 8 of the Human Rights Convention, and freedom of expression protected by Article 10.
Revenge porn is a gross violation of the victim’s privacy, exposing highly personal images to thousands without their consent. It is an intimate form of abuse that not only degrades the victim, but robs them of their private identity – and for many this is where the conversation ends.
However, the US has faced particular difficulty in outlawing revenge porn due to the robust protection of free expression in the First Amendment. The fear among free speech advocates is that any restriction on what one can post to the internet could lead to a ‘slippery slope’ that opens the door to more draconian forms of censorship.
Under the Human Rights Convention, which takes effect in UK law through the Human Rights Act, free expression may be restricted for several reasons, including:
- For the purposes of public safety;
- To protect the reputation and rights of others; and
- To prevent the disclosure of information received in confidence.
So what’s being done about revenge porn?
The first concern of many victims is to ensure that the revenge porn is taken down. But this is easier said than done. Once an image or video is uploaded to the internet it can circulate very quickly, and anyone can download it to their computer where it becomes very difficult for the authorities to find. To address this, efforts are being made to deter people from posting revenge porn in the first place.
Prior to 2015, victims had to rely on obscenity laws and offences relating to harassment and blackmail to get justice, but these were ill-suited to the problem. Revenge porn has now been criminalised in the UK by section 33 of the Criminal Justice and Courts Act 2015. This makes it a criminal offence, punishable by up to two years in prison, to disclose a ‘private sexual photograph or film’ without the consent of the subject, and with the intention of causing distress.
But there are concerns that this does not go far enough. It can be very difficult to prove that a perpetrator intended to cause distress. The law also does not cover people who share non-consensual porn for financial or other reasons – such as the hacker who leaked private pictures of A-list celebrities in 2014.
There are also questions as to how far criminality should extend in these cases. Should people who view or subsequently share revenge porn be criminally liable? Should the owners of websites be responsible for ensuring that revenge porn is not displayed on their site?
These are questions that will have to be answered, but for the moment it is clear that the authorities are not holding back on using the new criminal offence. It was reported in September 2016 that over 200 people have been prosecuted under the new law.
To read more about free speech and privacy, take a look at these:
- Privacy and the paparazzi – who owns your photo?
- The right to privacy and why it matters.
- Free speech explained in 5 cases.
