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Landmark revenge porn cases are a stark warning for perpetrators and social media companies

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Alan ReidSheffield Hallam University

A recent brace of revenge porn civil cases in the UK – which in one instance led to the complainant agreeing to a settlement deal with Facebook and, separately, a YouTube star winning substantial damages – have put on notice potential perpetrators and social media sites.

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When relationships turn sour, revenge porn can be used as a devastating weapon. Shutterstock
 

The need and desire to digitally document and record our lives now extends to sexual relationships. It also means revenge porn is an unfortunate reality for many.

The law generally struggles with regulating sexual offending, given that it often takes place in private, with no witnesses beyond the victim and the alleged offender. Revenge porn is no exception.

Revenge porn laws around the world focus, quite rightly, on the offender who makes and shares the image. And these new laws deal with an age old problem: the sexual humiliation and abuse of someone. The modern version of this abuse differs from its older iterations in one respect: the extent of the humiliation.

Disseminating intimate images to humiliate and cause distress used to take quite a bit of effort on the part of the offender. They would need to produce multiple physical copies before distributing them around the local area.

As technology advanced, the effort reduced: wrongdoers could send digital copies to everyone in their contacts list. Now, thousands of virtual “friends” can see these images on social media sites, and those friends have thousands of “friends” as well. The digital world doesn’t forget: just ask Google.

Social media firms absolve themselves of blame by relying on the legal distinction between publishers and platforms. Facebook, Google and other Silicon Valley companies insist they aren’t the creators of content: that’s the job of their two billion users and countless advertisers who market brands on the sites.

The problem is that, for too long, social media companies – with their scale and reach – have assisted the perpetrator. In the physical world, the offender was limited by their own resources: how many copies could they pay for to be produced and how many trees, walls and street corners could be plastered with naked images? Such action was undoubtedly distressing for the person targeted, but space and time were limited.

A million views online and an easily searchable, robust web link are not so easy to move on from or ignore. In the digital world, an offender’s conviction under the law is merely a pyrrhic victory. The psychological trauma for the victim persists.

Revenge on the revenge porn facilitators?

However, slowly but surely, the law is evolving. Privacy has never been a standalone right in English law and incremental developments have progressed through the prism of the breach of confidence doctrine.

In England and Wales, the law now envisages a specific tort of misuse of private information. The YouTube star Chrissy Chambers successfully sued her ex-boyfriend under this law in the High Court. He had surreptitiously recorded videos of them having sex and, when the relationship ended, the man – who cannot be named under terms of a settlement deal – posted these videos onto a number of free porn websites. Chambers’ victory now paves the way for her to sue the sites that hosted this content.

Chrissy Chambers may feel empowered to sue these sites following a settlement arising out of a recent landmark revenge porn case from Northern Ireland. An unnamed 14-year-old sued Facebook when she discovered that naked images of her were viewable on a “Shame” page hosted on Facebook.

Unfortunately, from a legal, academic point of view, the civil case was settled out of court. So the teenager, fortunately for her, received some solace from a “without prejudice” financial settlement from Facebook. For the law, uncertainty remains since it is not clear how successful a misuse of private information action against Facebook would have been.

Social media companies are entitled to rely on the safe harbour provisions of laws like the EU’s E-commerce directive, when the “innocence” or “neutrality” of their system is not in question. However, in cases where the system is clearly being abused – where sections of the site are specifically used for despicable acts of shaming, child abuse and terrorism – social media firms cannot hide behind this passivity rule.

Where Facebook, Google and so on, are actively altering the flow of information to its users via algorithms, and encouraging third parties to create content, it becomes harder for them to legally argue that they are acting without any editorial control.

Proactive management and supervision of a social media site will do more to minimise instances of revenge porn than recent measures brought in by Facebook, which has invited users to send intimate pictures to it for verification and removal.

The ConversationFor social media users in the UK, the government’s commitment to introduce a digital charter and code of conduct could yet concentrate the minds of Silicon Valley execs who must acknowledge the real harm caused by revenge porn and other disturbing images that are posted on their sites.

Alan Reid, Senior Lecturer in Law, Sheffield Hallam University

This article was originally published on The Conversation. Read the original article.

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