Nonconsensual pornography distribution has been around for a while. One of the first litigated instances of what we now know as “revenge porn” occurred in 1984 when Hustler magazine published a nude photograph of a woman submitted by a partner under a forged consent form. Since then, scorned lovers, ex-spouses and nefarious internet extortionists have continued to cause personal distress and wreak havoc to reputations in an ever-increasing spiral of bullying and public shaming.
Legislation has been slow to catch up with the escalation of this practice, but countries are beginning to put laws in place to protect individuals from online defamation stemming from the dissemination of intimate images. The question is: Are they doing enough?
In 2015, revenge porn was criminalized in the UK under the 2015 Criminal Justice and Courts Act. To penalize a perpetrator under this Act, however, prosecutors must find proof of intent to cause malicious harm or distress. Because the law lacks a firm definition of what constitutes such proof, it allows the justice system a broad interpretation of actions, which lets many get away with the crime. That being said, the law, introduced in April 2015, was successfully applied the following month when the first individual was charged, convicted and sentenced under the new legislation.
Canada released its version of revenge porn legislation in the same year, enacting the Protecting Canadians from Online Crime Act in April of 2015. This law aims to halt cyberbullying of all types, including nonconsensual sharing of intimate images. Canada’s law takes revenge porn legislation a step further by expanding its definition of protected images to include any image where a person or persons had a reasonable expectation of privacy such as a photo of two people kissing in a park. Despite the more encompassing nature of its law, Canada’s first conviction came only this month in a landmark case tried by the Ontario Superior Court. The victim, under the pseudonym of Jane Doe, was awarded $141,708.03 from her ex-boyfriend, who uploaded a sexually explicit video of her to Pornhub. Canadian legislators have continued to define and expand their laws, with one province, Manitoba, reaching a decision in January of 2016 to allow victims to not only sue the initial perpetrators but also anyone who further distributes this type of pornography.
In the United States, revenge porn has been a hot topic for several years, with a federal revenge porn bill being discussed throughout 2015. At this writing, 26 states have individual revenge porn laws, but they vary widely from state-to-state. For example, the “Revenge Porn Law” (SB 255) signed into California law in 2013 excludes intimate selfies from protection. If you press the “record” or “photo” button yourself to take an intimate selfie, it is automatically excluded from protection. If someone hacks your computer and distributes the intimate photos you’ve stored there, these too are excluded. California’s law is also notably lenient on re-distributors, who are protected from prosecution.
Contrast this with Illinois’ law, SB2694, which does not require motive to be proved for conviction as does the UK law and does not protect re-distributors of the images, as does the California law.
The trouble with state laws is that perpetrators can look for states with lenient laws if they are intent on causing damage or harm and half of our states still have no protection whatsoever. For example, this year when Chicago Blackhawks draftee Garret Ross was charged with disseminating sexual images in Illinois, it was determined he resided in Michigan at the time of the crime so the case had no basis in Illinois. While Illinois has one of the toughest laws on revenge porn in the nation, Michigan has no protective legislation on the books aimed specifically at revenge porn. However, he could be charged with a misdemeanor in Michigan if the case goes to court there. In contrast, under Illinois law, Ross would face Class 4 felony charges that carry a one-to-three year prison sentence and up to $25,000 fine, plus restitution to the victim for costs incurred. The Blackhawks suspended Ross until resolution of the charges. He was reinstated on March 29, 2016, after the charges in Illinois were dropped based on his residency. The victim may still file charges in Michigan.
This kind of disparity in state laws is what prompted California Representative Jackie Speier to work on introducing federal legislation to make it illegal to distribute nonconsensual explicit images on a nationwide level. The bill used input from lawyers, technology companies, constitutional scholars and advocacy groups to more clearly define what constitutes an intimate image. In addition, the bill refines evidentiary requirements to create a law that is constitutionally sound while providing the highest level of protection. Called the Intimate Privacy Protection Act, it was scheduled to be brought before Congress in the fall of 2015, although further research failed to find mention of it after mid-2015. A call to Congresswoman Speier’s D.C. Communications Office confirmed that the bill is no longer under consideration. However, the respondent from Speier’s office was clear that she could “not speak for the Congresswoman.” No details regarding why the bill was set aside were forthcoming.
In the meantime, California’s Attorney General Kamala Harris formed a technology and leadership subcommittee that includes members of large technology companies such as Facebook, Twitter, Google, Pinterest, Microsoft, Tumbler and Yahoo. With input from these companies, the subcommittee provided a list of suggestions for publication on a cyber exploitation website run by Ms. Harris’ office. The site provides tools for law enforcement agencies, links to privacy and removal policies for major online companies, and resources for victims. It also offers a best practices white paper that other technology firms can use to lessen the chances that revenge porn will find a home on their sites.
As long as the topic of revenge porn remains a hot button issue that garners both media and public attention, governing bodies all over the world will continue to explore and refine their policies regarding it. Unfortunately for some, their efforts are too little or too late. In February of 2015, the Los Angeles Times reported that Kevin Christopher Bollaert, operator of revenge porn websites UGotPosted.com and ChangeMyReputation.com was convicted of six counts of extortion and 21 counts of identity theft. While he may serve up to 23 years in prison for his crimes, his many victims were left with long-term issues. Some became suicidal; others lost jobs, spouses, partners, and the love and respect of friends and families. In all cases, reputations were irreparably damaged.
Many women and young girls who are victims of revenge porn pay the ultimate price—their lives. Media profiled suicides like Americans Amanda Todd, Audrie Pott, and Kacie Palm; Canadian teen Rehtaeh Parsons and Brazilian teen Julia Rebecca also underscore the need for firm and irrefutable legislation in place worldwide to put a stop to this widespread harassment and invasion of privacy. Legislation should be comprehensive and include detailed definitions and penalties to keep perpetrators from being able to hide behind vagaries and loopholes. The wide variance in laws from state-to-state and nation-to-nation also highlights the need for an international internet governance group. A group that can work on creating overall standards for internet regulations to make online crimes such as revenge porn more difficult to carry out. Until then, advocacy groups such as the Cyber Civil Rights Initiative continue to work hard to bring attention and focus to the insidious and devastating crime of revenge porn.
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