‘Revenge porn’: whether you are a film star; girl next door; or daughter of an executive, greater legal protection is needed for victims

Reportedly Facebook has 1.23 billion monthly active users and Twitter has 550 million tweets a day. Our constant interaction online and the speed by which data spreads makes information accessible like never before. Most of the interaction is good, but a worrying trend is emerging known as ‘revenge porn’. It can be described as when an individual uploads sexually explicit images of their ex-partner onto the internet without the permission of the ex-partner. Images are sometimes accompanied by personal information pertaining to the victim, including their name and their location.

Also of concern are personal images appearing online as a result of hacking, or the theft of a mobile phone or computer. Sometimes thieves upload images and other information to the internet.

According to the UK Safer Internet Centre, The National Stalking Helpline and Women’s Aid, it is a problem which is escalating in the United Kingdom. The consequences for the victim can range from significant feelings of embarrassment and degradation – as was experienced by a UK university student who had 21 naked photos uploaded to Facebook and then reposted on a revenge porn site – to more serious consequences including blackmail, harassment, and even suicide.

The problem is that once an image is online it can spread with viral speed and is incredibly difficult to definitively track, stop and delete. Proliferation is made easy by the accessibility of free uploading sites including Facebook, Twitter and Instagram (who, whilst they have rules against nudity, won’t necessarily be aware of an offending image until a complaint is received), but also because of websites in the darker corners of the internet, many of which are specifically set up to facilitate such abuse. The perceived anonymity online makes some individuals feel like they can act without consequence and even if a website host agrees to remove content from their site, there is a possibility that the images will pop up elsewhere. Images which were originally sent without much thought can have long-lasting and incredibly damaging repercussions for the original sender.

However, the US authorities have begun to react to the problem: New Jersey and California have revenge porn laws in place which criminalise the dissemination of sexual photos without consent. In March a judge in Ohio ordered a $385,000 fine against two individuals (founders of website that facilitated revenge porn) as a result of an image of an underage girl appearing on their website. The State Senates of both Wisconsin and Florida have recently passed Bills which will result in sanctions for individuals who upload private, explicit photos without the consent of the sender.

The difficulty that a concerned mother faced when she took on Hunter Moore in the US, the ‘Most Hated Man on the Internet’, is illustrative of a wider problem. Moore ran a website which allowed users to post revenge porn – which, he bragged, enabled him to become a “life ruiner”. Not only did the site publish images it also posted information about victims, sometimes including their name and address. Moore posted photos of the woman’s daughter (then 24 years of age). The complaints to Moore’s attorney, to Facebook, to his internet service providers and even to the police failed to resolve the issue. It was only because the photos were obtained by hacking into the daughter’s email account (she hadn’t sent them to anyone other than herself) that the FBI became involved. The website effectively shut down in 2012 and Moore was indicted in January 2014 for conspiracy, unauthorised access to a protected computer and aggravated identity theft. If convicted, he and a co-defendant could potentially face decades in federal prison.

The apparent inability or reluctance of the US authorities in the Moore case to do anything meaningful for so long is demonstrative of a wider problem. The US fear of “censorship” or of anything that might be twisted by interest groups as being a restriction on free speech (something which would be regarded as anti-constitutional), means that authorities (and even social media companies) are choosing not to act or are impotent to do so, even though the underlying problem is clearly unacceptable. The US dominance in anything internet related means that those in other jurisdictions are negatively impacted by what many would regard as the overly wide interpretation of free speech. Surely, posting a picture containing something personal or sexual of another person without their knowledge or consent is not about free speech?

More needs to be done to protect potential victims from intrusion into their private lives, including in circumstances involving revenge porn. In the US the hacking of an email account should not be the decisive factor as to whether something is actionable, so it’s good to see that laws are being passed. Quite clearly if someone does something with an image which was intended to be private without the permission of the person featured in it, there ought to be a mechanism for privately and expeditiously dealing with the issue. Whilst it can be argued the best course is not to create such images in the first place, the fact that such incidents are becoming increasingly prevalent would make a legislative framework welcome.

In the UK there are already various legal tools available to assist with online issues. For example, amongst others, the right to privacy under the Human Rights Act, Protection from Harassment Act, Data Protection Act, Criminal Justice Act 1977, Malicious Communications Act 1998, Communications Act 2003, and, potentially also the Copyright Act 1988; meaning that victims of online abuse should not feel they have to suffer in silence. That said, a tightening of the legal framework in this area (which would not otherwise impact upon the right to legitimate freedom of expression) would appear to be overdue.

Jon Oakley is an Associate specialising in Reputation Protection at Michael Simkins LLP.