A new term has emerged recently in the lexicon of online privacy rights: “revenge porn”. It refers to the dissemination of nude photographs or videos, most frequently by a spurned lover who in an act of spite publicly shares the images, invariably on the internet, with the intention of humiliating or embarrassing the victim.
The rapid rise of revenge porn has been greatly facilitated by developments in mobile phone technology and the recent emergence of the ‘app’ industry. It is fair to say it is very much an iPhone phenomenon.
Young lovers have taken to sending each other explicit images of themselves, often captured in front of a mirror on an iPhone. If the relationship subsequently ends in acrimony these images are no longer within the control of the victim and their publication can cause profound distress.
Specific websites were set up to cater for the burgeoning revenge porn industry, most notably www.IsAnyoneUp.com in the US which invited people to post nude images of their exes. At its height, it was receiving 300,000 ‘hits’ each day. The website was bought and closed down last year by anti-bullying campaigner James McGibney, CEO of www.Bullyville.com.
There is also Snapchat, the picture sharing phone app which was launched in 2011 and allows its users to send images which ‘self-destruct’ shortly after receipt. Users set a time limit for how long recipients can view their ‘snaps’, ranging from between one and ten seconds, after which they are deleted from the recipient’s handset and the Snapchat server. However, Snapchat users be warned, if recipients act quickly and take a screenshot of the image it can be saved in permanent form.
If explicit photographs or videos have been published on the internet the victim’s primary concern will be to have them taken down immediately. A formal take-down letter from a solicitor will often be effective for websites based in the UK or Europe because under European law the website can assume liability for publication if, once notified that it is hosting content which amounts to an unlawful misuse of private information, it does not act expeditiously to remove it. The position is more complicated for websites based in the US due to the high level of constitutional protection afforded to freedom of speech, but even there the landscape is changing (more of which below). For much of the rest of the world it is even more difficult and the internet has been likened to the Wild West.
A revenge porn victim’s principal target, however, is likely to be the spurned lover. The objective will be to take back control of the explicit images and, usually, to seek damages for the distress and embarrassment caused by their publication. It is often necessary to go to court and obtain an injunction restraining further publication and an order requiring the immediate destruction of all photographs and videos of an intimate nature and courts are generally sympathetic to victims in these cases. There are potentially very serious penalties for breach of an injunction, including imprisonment for contempt of court, and it can therefore be a very effective remedy.
A bill is currently being passed through California’s Senate to specifically address the revenge porn online phenomenon. The proposed legislation will make it a criminal offence to post photographs or videos of someone in a state of full or partial undress without their permission. It will be no defence to say that the subject had originally consented to being photographed or filmed.
Prosecutors would have to prove that there had been intent to cause serious emotional distress and that the victim has indeed suffered serious emotional distress. There is, prima facie, a reasonable expectation of privacy in the case of intimate photographs and one can expect there to be a number of prosecutions in this area if acts of revenge porn continue to proliferate. Moreover, the proposed penalties are severe: a first offender could expect up to six months in prison and/or a $1,000 fine.
California is the hosting capital of the social media behemoths, including Facebook and Twitter. It is therefore not surprising it finds itself at the vanguard of the social media revolution and the legislation that seeks to cope with it. If this Bill is passed we can expect other States to follow suit. If so, will it be only a matter of time before similar legislation is pushed through Parliament this side of the water?
This is, not for the first time, an area where the law is desperately striving to keep pace with the social effects of modern technology in a fast-changing world.
Alex Cochrane is a Senior Associate at Collyer Bristow. Further information about Collyer Bristow’s Cyber Investigation Unit can be found here.
This would seem to be a classic case of breach of confidence. The law (or Equity) provides a remedy for unconscionable conduct of this kind against both the spurned lover and, in most cases, the website that publishes the image. The creation of a criminal offence, however, would exert a rather more powerful deterrent to both parties.