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What do we do about a problem 
like revenge porn? 
ORGcon 
Nov 2014 
Lilian Edwards 
Professor of E-Governance 
University...
Revenge porn 
• What is revenge porn? “Bastard child of sexting”? 
• Probably not new but exacerbated by camphones, social...
What are the harms? 
• Strongly negative effects – “slut 
shaming”, loss of job, depression, 
wrecking future relationship...
Victim blaming 
Don't let anyone take smutty pictures of you. Trying to remove it from 
the Internet is like attempting to...
The sexting heritage 
• 2012 , NSPCC/KCL/LSE : “girls as young as 11 were 
being asked to send "special photos" to boys wh...
The problem environment 
• Specialist sites in US: IsAnyoneUp.com, 2010; 
IsAnyoneDown; MyEx.com; Texxaan.com – often many...
US law – the speech problem 
• Criminal law 
– Speech issues – First amendment 
– Harassment laws (largely state based) us...
Revenge porn vs freedom of speech 
online? US vs EU 
• Freedom of speech? Interference with public record?; Conceivably if...
UK: Criminal law - 1 
• “Malicious communications” 
1. Communications Act 2003 s 127 
– Using a “public e-communications n...
3. Protection From Harassment Act 
1997 (PHA) 
Not mainly designed for the Internet 
Section 2: harassment involves 
• a “...
Policing and social networks? 
• Police perception issues: A “domestic” matter? 
• Can women just “walk away” from Twitter...
The legislative response 
• HL Select Committee – July 14; no brand new law needed; 
tweaks, yes. 
• DPP social media pros...
Effectiveness? 
• Will new criminal offences make big difference? Already 5 
years poss under harassment and 2 years under...
Meanwhile - The “right to be 
forgotten” solution 
• EU Data Protection Directive 1995 : Right to control processing of yo...
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What do we do with aproblem like revenge porn ?

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Revenge porn is a vile and growing phenomenon. Thuis talk discusses its origins and gendered nature, what UK criminal law applies to stop it, and what other solutions there might be eg faster take down by socuial networks, the "right to be forgotten"

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What do we do with aproblem like revenge porn ?

  1. 1. What do we do about a problem like revenge porn? ORGcon Nov 2014 Lilian Edwards Professor of E-Governance University of Strathclyde, Glasgow & Deputy Director, CREATe Lilian.edwards@strath.ac.uk @lilianedwards Pangloss blog : http://blogscript.blogspot.co.uk/
  2. 2. Revenge porn • What is revenge porn? “Bastard child of sexting”? • Probably not new but exacerbated by camphones, social networks, WhatsApp, Snapchat , dedicated sites etc • Usually ex-partners, usually images originally given consensually • But not always; eg recent threats to do a “Jennifer Lawrence” on Emma Watson by 4chan (hoax, but still..) • Ist UK case involved lost/hacked mobile • Gendered crime? Online harassment disproportionately aimed at women – 72.5% of victims of Internet, Pew Internet – also gay men. • MacAfee report 2013 – 10% of Americans had threats of exposure of images by ex partners, 60% of threats acted on, vast majority of victims women.
  3. 3. What are the harms? • Strongly negative effects – “slut shaming”, loss of job, depression, wrecking future relationships, silencing, suicide? (Hess) • A new type of harassment? A virtual sexual assault? Merely “speech”? • Arguably art of general wave of online misogyny and harassment: – cf UK Criado-Perez/Creasy cases; “I will rape you tomorrow at 9 p.m … Shall we meet near your house?” – #gamergate – “Everyday Sexism” – “Victim blaming” .. “Ignore the barrage of violent threats and harassing messages that confront you online every day.” That’s what women are told. But these relentless messages are an assault on women’s careers, their psychological bandwidth, and their freedom to live online. We have been thinking about Internet harassment all wrong. Hess Why Women Aren’t Welcome on the Internet
  4. 4. Victim blaming Don't let anyone take smutty pictures of you. Trying to remove it from the Internet is like attempting to empty Loch Ness with a teaspoon. The simple answer to this problem is not to ever give anyone a photo that you would mind being put on the internet. No-one is under any obligation to do such an idiotic thing after all. How to beat it? - don't take you own boobs selfie Rhiaden makz 29 July 2014 7:29pm No, it is horrific that people trust each other, especially in long-term relationships isn't it?
  5. 5. The sexting heritage • 2012 , NSPCC/KCL/LSE : “girls as young as 11 were being asked to send "special photos" to boys who they knew”. • “many young people seem to accept all this as part of life. But it can be another layer of sexual abuse” • 2013, NSPCC/Childline “Six out of 10 teenagers say they have been asked for sexual images or videos” • 2014, US survey “about two-thirds of the teens in my research studies report that they were pressured or coerced into sexting at least some of the time”.. “becoming a “normal” part of adolescent sexual development”
  6. 6. The problem environment • Specialist sites in US: IsAnyoneUp.com, 2010; IsAnyoneDown; MyEx.com; Texxaan.com – often many details attached • Sites earn c $10,000pcm in ads; blackmail also a revenue stream – ugotposted.com (Cal) • Now arriving in UK/EU since around start 2014 • More use “mainstream” sites – FB, Twitter • Forerunner - AMP case, 2011, FB/BitTorrent, held harassment & injunctions granted • “Ist” UK “revenge porn” case , Samuel, Bristol Aug 2014; Pix on FB, (MCA 88 prosecution) • 2nd, Luke King, 21, Nottingham, jailed Nov 14, 12 wks (harassment) • Maria Miller, Telegraph 6/10/14 : 149 complaints across 8 police forces but only 8 cautions resulted
  7. 7. US law – the speech problem • Criminal law – Speech issues – First amendment – Harassment laws (largely state based) usually very limiting • Cal. “substantial emotional distress” • Cal. “gravity of purpose and immediate prospect of execution of the threat” – ID theft? Extortion? Some success. – Some dedicated revenge porn statutes – but may fall foul of constl guarantees (but see also Israel, Victoria AUS, Canada ..) • Remedy of take down against host site? – US s 230© CDA – no website is responsible for content authored by third party – even after notice – Unless federal criminal law (eg child porn ) or IP – => Some attempts to take down via copyright (DMCA). Silly. What about non-selfies?!
  8. 8. Revenge porn vs freedom of speech online? US vs EU • Freedom of speech? Interference with public record?; Conceivably if public figure (Jennifer Lawrence? Cf Max Mosley Nazi orgy?) but v unlikely. • ECHR art 10 “Everyone has the right to freedom of expression...” • Handyside v UK ECtHR , 1976 : this includes right to express opinions “that offend, shock or disturb the state or any sector of the population” • BUT art 10(2) 2: “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society… for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence.. • EU defends rights to control personal data esp sensitive personal data • Assaults on women online arguably restrict their access to the Internet
  9. 9. UK: Criminal law - 1 • “Malicious communications” 1. Communications Act 2003 s 127 – Using a “public e-communications network” – To send a “message or other matter that is grossly offensive or of an indecent , obscene or menacing character” – Max 6 mos summary, 2 years on indictment 2. Malicious Communications Act 1988 s 1 – Communication must be • “in whole or part, of an indecent or grossly offensive nature” if purpose was to “cause distress or anxiety to the recipient or to any other person “ it was meant to be communicated to • Used in Bristol case – but plead guilty. • Not applic Scotland; 6mos jail max currently • Problem 1 – is revenge porn ““grossly offensive or indecent”? Originally consensual, usually “. Only illegal or extreme sex images being prosecuted – DPP guidelines obscenity. Look at the “message” not the image??
  10. 10. 3. Protection From Harassment Act 1997 (PHA) Not mainly designed for the Internet Section 2: harassment involves • a “course of conduct” (at least 2 occasions, s 7); • which amounts to “harassment “of another; and defendant knows, or ought to know this • Harassment not defined but can clearly include “speech” and nonconsensual use of images (AMP) • Section 4, 2A and 4A (“stalking”) also relevant; max 5 yrs jail Problem 2 : what if not a “course of conduct” = at least 2 occasions, (s 7) (will 2 photos do,2 sites?)
  11. 11. Policing and social networks? • Police perception issues: A “domestic” matter? • Can women just “walk away” from Twitter? (Hess, p 3). • Guardian 21 Oct 14: “I remember the police telling me they couldn’t do anything. I remember them offering to file a domestic incident report and have a word with my ex. I remember begging them not to reveal to him that they had no power to act. I was petrified of antagonising him further.” • July 14 – police just rolling out social media training… • FB/Twitter – emphasis self-help, peer to peer mediation – resistant to real time monitoring; abuse team in 100s for entire globe; look at community rules NOT national criminal rules
  12. 12. The legislative response • HL Select Committee – July 14; no brand new law needed; tweaks, yes. • DPP social media prosecution guidance amended to include revenge porn, specifying for CA/MCA, the indecency etc is of “message” not “image” – SOA 2003 (?); under 18s, child porn possession etc offences possible • Amendments from peers, govt to Criminal Justice and Courts Bill – Offense to disclose “private sexual photo or film” • Without consent • With intention of causing that individual distress (“for the lulz?”) – Defenses: “public interest” journalism, detecting crime, previous disclosure for reward – Also E-Commerce Directive defenses – see next.. – Max 2 years or 12 months on summary trial
  13. 13. Effectiveness? • Will new criminal offences make big difference? Already 5 years poss under harassment and 2 years under CA2003 (and soon, MCA). Not addressed - • Remedy of take down for victims?? • Statute does not create a a primary criminal offence by host sites eg SNSs -> desire to take down expeditiously (EC E-Commerce Directive) to avoid liability – no offense as no intention to cause distress. – So no advance in pushing takedown remedy Better approaches? • Changes in policing attitudes and training? • Different remedies? Restorative justice? • More responsibility by social network providers? • Fundamental changes in gender attitudes on and offline?
  14. 14. Meanwhile - The “right to be forgotten” solution • EU Data Protection Directive 1995 : Right to control processing of your personal data. • Sexual image is “sensitive personal data” ie only ground for processing it = explicit consent, withdrawable • Plus can stop processing (including delete data) if “causing damage or distress” (DPA) ; cheap and fast (cf injunction) • EU law – won’t apply to US dedicated revenge porn sites , but.. • “Right to be forgotten” upheld as against Google in ECJ Google Spain case (C-131/12, 2014)– right not to have your name linked to a certain page • Issues: – can find link by searching google.com (etc); “Streisand effect”; – Remedy after the fact. Deterrent effect of criminal law still needed in combination.

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