When Love Turns Sour
27 February 2018
Revenge porn has been in the headlines in light of YouTube star Chrissy Chambers’ high-profile settlement of her lawsuit against an ex-partner in the UK.
An ex-boyfriend took a number of videos of Ms Chambers without her knowledge or consent, and posted them online. He included her name in the title and description of the videos in order to maximise the damage caused to her. Chambers was unaware of the existence of the videos for two years, meaning that the videos had amassed tens of thousands of views before she was in a position to take action.
Ordeals such as this are unfortunately becoming more common. The number of incidents reported to the UK's dedicated Revenge Porn Helpline has increased from 500 when it was established in 2015 to more than 1000 in 2017. A 2016 report found that 1 in 25 Americans have been threatened with or are victims of revenge porn. With young people growing up in an environment where the lines between online and offline communications are increasingly blurred and sexting is becoming normalised, this problem is not going away. This means that it’s crucial that victims have the law behind them when photos and videos are disclosed without their consent.
Many people who upload revenge porn are emboldened by the view that the internet is a wild west where they will not be held accountable. This is not the case.
In England, a number of criminal laws capture revenge porn. Prior to 2015, it was sometimes possible to bring prosecutions under sexual offences, harassment and malicious communications laws. These laws were not designed to combat revenge porn but sometimes captured it.
In 2015 a specific criminal offence was created for disclosing a private sexual photograph or film without the consent of the person depicted in the content, with the intent to cause them distress. It carries a maximum sentence of two years imprisonment.
It is also possible for victims to sue perpetrators for damages, or to obtain an injunction stopping them from disseminating revenge porn. If the perpetrator breaches the injunction, they could face prison. Images and videos of sexual activity are treated as being highly sensitive under privacy law. The right to freedom of expression of the person circulating images and videos of sexual activity without consent will rarely, if ever, outweigh the victim’s right to privacy, particularly where material is being circulated in order to exact revenge on a former partner.
Weaknesses to legal protection of victims
Despite this, the law still needs to catch up with the scale of the problem.
A major barrier to relying on the 2015 revenge porn law is the need to establish that the person disclosing the revenge porn intends to cause the victim distress. In some cases this is straightforward. In other cases, perpetrators might argue that the material was disclosed accidentally, or simply that revenge was not their motive.
Bringing a lawsuit is a costly process. Court fees alone can be very expensive when a victim is seeking a high award of damages, which will often be the case with revenge porn. Chambers met her £20,000 court fees through crowdfunding, but many victims do not have the resources to do this.
Once revenge porn goes viral, keeping it off the internet is a war of attrition. A myriad of third parties are involved with the dissemination of revenge porn, from social media websites, pornography websites, hosting providers and search engines. Some third parties are very responsive to takedown notices, but they argue that there is no obligation on them to monitor their services for republications, even where they have technology which would enable them to do this. Once material is removed, you need a team proactively monitoring and sending take-down requests in order to keep it that way.
Revenge porn can also engage complex jurisdictional issues. Many pornography websites are based in the US, which has weaker privacy laws and no federal prohibition on revenge porn. This was reportedly why Chambers brought her claim in England. Though reputable US websites are often responsive to copyright takedown requests, copyright usually belongs to the person who records a video or takes a photo, meaning that often perpetrators own the copyright in revenge porn. Websites run by malicious operators may refuse to co-operate with legal requests.
The current state of the law
Legal protections for revenge porn victims have improved in recent years. Public opinion on revenge porn has also shifted, and the tone of media coverage of victims is generally more sympathetic thanks to the brave campaigning of activists like Chambers.
However, there is still some way to go. It should be more straightforward to prosecute those who disseminate revenge porn, and intermediaries need to take a more proactive role in preventing old material from re-emerging so that victims can get on with their lives.