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"

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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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.