"Revenge Porn": The Response to Cyber Exploitation

Revenge porn. Non-consensual sharing of intimate images. Online sexual harassment. Cyber exploitation. It doesn’t matter what you call the behaviour, the public sharing of explicit images online without the subject’s consent has become one of the scourges of the new Internet generation.

Around the world countries are responding to this destructive phenomenon in different ways. At the same time, industry is working to prevent the spread of images, non-profits and teachers are educating individuals on the perils of sharing intimate pictures, and law enforcement is attempting to keep up with technology and ensure the application of the law.

National governments have reacted to this problem by proposing and enacting a wide range of legislation. In France, for example, it is a crime to transmit an intimate picture of a person who is within a private place, without the consent of the person concerned. The penalty for this is one year’s imprisonment or a fine of €45,000.

In 2015, England and Wales criminalized the disclosure of private sexual photographs and films without the consent of the individual depicted and with the intent to cause distress. The punishment for violating section 33 of the Criminal Justice and Courts Act is up to two years imprisonment.

To date there is no specific federal legislation in the US to require the removal of intimate photographs that have been shared online without consent, or to punish the wrongdoer. Under the Digital Millennium Copyright Act, ownership of a photographic image rests with the person who took the photo. In the instances where a sext has been shared, the ownership vests with the victim. As a result they may request removal of the picture under this Act. However, this is an inelegant, time-consuming, complicated and sometimes ineffective response. The damage has usually been done long before the conclusion is reached. There are other existing remedies, though these are arguably just as insufficient.

Federal legislation is anticipated, but in the meantime a number of US states have proposed and passed laws to fill the gap. Arkansas classifies the sharing of explicit images without consent as a Class A misdemeanor, while California provides for a prison term of 1 year where the victim is a minor. In total 26 states have laws to respond specifically to the problem of revenge porn.

In the absence of legislation, global and domestic companies have increased their role in preventing the sharing of these images. In 2015, Google created a web form to allow for the reporting of nude or sexually explicit images shared without consent in Google Search results. This does not remove the images from the websites, but does mean that the pictures do not appear in general searches.

Microsoft has committed to removing links to photos and videos flagged as revenge porn in searches through Bing, when notified by the victim. In order to better facilitate reporting, a dedicated webpage has been established. All content reported is removed when shared on OneDrive and Xbox Live. Yahoo encourages users to report instances of revenge porn to them for investigation. Intimate images posted without consent are prohibited on Twitter and Facebook. Both social networks commit to removing content when reported to them for breach of their terms of service.

Numerous companies came together in California to outline a series of best practices to remove this material. However, despite the leadership and responsiveness of the well-established technology companies, independent websites are being launched with the specific malicious intent of facilitating the sharing of naked pictures, against the will of the subject. These sites deserve no legal protection and where possible should be shut down and prosecutions against owners should be pursued where appropriate.

There can be no arguments about the criminal prosecution of adults who distribute intimate images with malice, or intent to cause distress, or those who create websites designed to hurt victims or extort money from innocent people. While there is little debate that the further sharing of intimate images is wrong, the criminalization of teenagers and children is disproportionate in terms of response. Youthful indiscretions do not warrant imprisonment or time on the sex offender register, rather for those individuals a diversionary program wherein they are educated on the consequences of their action, the effect on victims and the potential for legal punishments is more impactful.

FOSI has written previously about the importance of education around sexting. The only real way to stop the phenomenon of revenge porn is to stop the taking and sharing of these images to begin with. However, that is not to diminish the responsibility and indeed culpability of those who maliciously share such images. While education and diversionary programs may suffice for teenagers, adults who choose to disseminate images with malicious intent must face criminal punishment.

Additionally, there is a real need for the education of law enforcement professionals around the world. The nature of these images makes it incredibly difficult for victims to report sharing, and as such it is vital that the reports are dealt with sensitively. Well-intentioned legislation cannot make up for deficits in the law enforcement response, so it vital that they receive adequate and appropriate training. The same need applies to prosecutors and all those involved in the criminal process.

The taking of sexually explicit images is nothing new, but the further sharing of these pictures and videos is causing mental and reputational harm to victims and needs to be addressed. This will require a group effort. Legislation needs to target those who share images with intent to cause harm to the victim, we should not be afraid of including that intent requirement. Those who share recklessly, especially minors, should be subject to educational programs, but should not be criminalized in the same way as those who set out to cause economic, reputational, and emotional harm.

Websites established to permit revenge porn images to be shared widely, which then extort money from the victims, should be fearful of new laws. Legislation should criminalize their behavior and cutoff their revenue streams. Additionally, ensuring that the responses, and technical knowledge and ability, of all those involved in the criminal justice system is important.

Internet companies should respond promptly and not allow this material on their services but as with many areas, requiring proactive monitoring of the millions of pieces of content uploaded daily does not work. Effective reporting mechanisms with quick response times and understanding staff willing to assist victims do more than inefficient searching for content.

Finally, as demonstrated by the UK Revenge Porn Helpline, the work of charities assisting victims is invaluable, their expertise and understanding of the issues helps many people who are confronted with an often terrifying, hard to navigate situation. Charities, parents and schools also have an obligation to talk to young and old people about the dangers of taking and sharing images, ways to mitigate the risks and the implications of further sharing of intimate pictures.

However, when it comes to sharing intimate images with intent to cause harm, education alone is insufficient and well-drafted legislation is needed. And soon.