Law 2:1 - Example Order

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There is ‘no sui generis law prohibiting publication of non-consensual pornography’ (Justine Mitchell:2014).

However, calls to create a specific criminal offence to prohibit this appalling practice are misguided. Not only would such an offence be ineffective in curtailing such behaviour, but this area is not a matter for the criminal law

Critically discuss, considering existing criminal legislation and any alternative remedies including non-criminal regulation of online behaviour.

Non-consensual pornography, or revenge-porn, has been described as “the distribution of a private sexual image of someone without their consent and with the intention of causing them distress”[1]. Currently, revenge pornography is not a criminal offence in the UK but an amendment to the Criminal Justice and Courts Bill 2014 aims to introduce such an offence[2], carrying a sentence of imprisonment for up to two years. In order to consider whether such reforms are misguided, this essay will consider control of such behaviour by social media platforms; the application of current criminal laws to revenge pornography; and actions victims may take against search engines returning links to such content. It will be concluded not only that the reforms are not misguided, but that more is needed in order to prevent the continuation of the appalling practice of revenge pornography.

Revenge pornography is intended to cause harm to the victim to the extent that “devastating consequences for the victim causing insurmountable damage to careers, family life and indeed, the individual’s health and welfare”[3] may result. Many cases of revenge pornography take place on social media[4]. One of the problems is that given that revenge pornography is not currently a criminal offence, victims must rely on timely and effective action by social media platforms in order to remove content; to this end for example, twitter has introduced a ‘report abuse’ button[5]. Whilst it is of course essential for social media platforms to work in tandem with the law in order to ensure that the attempt to curb revenge pornography is successful, the government’s suggestion that social media platforms must “provide more funding for the valuable work being done on internet safety,”[6] seems to have placed control of the issue firmly in the hands of these companies. Further, even if platforms have rigorous policies in place to remove content, the damage to a victim’s reputation may be suffered as soon as the image is shared[7] and thus where the intention of the perpetrator is to cause this, later removing content is hardly going to be a comfort to the victim, nor deter the perpetrator. It is thus submitted that introducing criminal sanctions, if they can be effectively enforced, will lead to better control.

Although it is difficult to find a penal code in any jurisdiction, which has “a single basic principle running through it”[8], it would appear that the criminal law aims to impose sanctions for behaviour which is deserving of the “moral condemnation of a community”[9]. Such sanctions should act as a deterrent to prevent individuals from engaging in behaviour which harms individuals and society in general[10]. The analysis below will show that revenge pornography fulfils these aims and is thus certainly a matter for the criminal law; it will also be shown that without a specific offence of revenge pornography, current legislation is not adequately able to protect victims and prosecute offenders.

Revenge pornography may constitute an offence under the Protection from Harassment Act 1997. The CPS Guidelines on Prosecuting Cases Involving Communications Sent Via Social Media, state that revenge pornography, will satisfy the criteria for a “course of conduct” under the Act[11] when it occurs on more than two occasions[12]. This appears relatively straightforward and it is thus difficult to agree prima facie with critics who state that, “boundaries of what you can and can’t say or do online are far from clear”[13]. However, it is submitted that although it is clear that revenge pornography can be shared once on social media without incurring criminal liability under the Act, whilst sharing more than once may incur liability; the reasoning behind this distinction is not only less clear but entirely unsuited to the nature of the offence. Indeed, the harm intended by the sharing of the image is likely to be caused with just one share because “once shared, an image can be impossible to track down”[14] and thus, it will be relatively easy for perpetrators to avoid liability under the Act whilst still causing harm. The 1997 Act cannot thus be considered an effective means to prosecute those who publish revenge pornography and in this respect, one is inclined to agree that the government’s reforms are desirable.

Section 1 of the Malicious Communications Act 1988 provides that it is an offence to send an “electronic communication of any description which contains a message which is indecent or grossly offensive”[15] where one of the purposes of publication is to cause distress or anxiety to the victim[16]. Section 127 Communications Act 2003 provides that it is an offence to send a message through a public electronic communications network, which is grossly offensive or indecent. Given that revenge pornography necessarily involves the sharing of a sexual image, with the intention of causing distress to the victim, it seems clear that revenge pornography could be caught by either of these pieces of legislation. However, in order to attract criminal liability, behaviour must go further than simply causing offence[17]. In this regard, the CPS guidance incorporates the dicta of the Lord Chief Justice in Chambers v DPP[18], who observed that an important consideration is the public interest and the Convention right to freedom of expression. Indeed, it has been explained that there is a high evidential threshold in order to establish liability under the Acts “because they involve restrictions to an individual’s ECHR Article 10 rights of freedom of expression”[19]. Whilst one of course accepts that there is a strong public interest in protecting freedom of expression in general terms; it is submitted that this is not an appropriate consideration in the case of revenge pornography. There can hardly be a public interest in exposing indecent images or videos of individuals[20]. It is thus clear that prosecution under these Acts is unsuitable to cases of revenge pornography.

Further, one should note that the phrases ‘causing offence’ and ‘anxiety’ are rather subjective. Depending on a victim’s religion or employment position for example, what may not be grossly offensive to one victim could cause extreme harm to another. Indeed, in 2010 a Welsh teacher working in the Middle East committed suicide after her ex-partner shared indecent photographs online;[21] one wonders whether her reaction would have been the case had her profession and location been different. In this sense, it is submitted that the new criminal offence should be a strict liability offence; mens rea should not be a necessary component. One is concerned that this may lead to subjective dissections of a victim’s character in order to ascertain whether harm has been caused, reminiscent of victim-blaming in rape cases[22] and ensuring that the CPS will continue to “set the bar deliberately high”[23] when deciding whether to prosecute. In this sense, it is submitted that the reforms are misguided because they do not go far enough in holding perpetrators to account without using the victim’s character to determine whether they are entitled to protection by the law.

Quite aside from problems with the new legislation, it is clear that existing criminal laws are ineffective in their application to the issue of revenge pornography, as they were not designed with this problem in mind. The fact that Under-Secretary of State for Justice has been unable to provide specific figures as to the number of prosecutions which have been brought in relation to revenge pornography under those pieces of legislation[24] is likely to be indicative of the fact that not many have. Indeed, other reports do show however that “there have been 149 victims of revenge pornography who have asked the police for help, yet only 6 cautions or charges have been brought”[25], highlighting the fact that the current law is inadequate and that reform is indeed necessary.

Revenge pornography does not just involve the sharing of images on social media; indeed it appears that there are approximately thirty websites in use specifically for the purposes of revenge pornography[26]. One of the problems with such websites is that they often appear in search engine results[27] and indeed are “readily promoted” by those search engines. This begs the questions of whether an individual may have a remedy against search engines for providing links to such content. A brief consideration of Google Spain SL and another v Agencia Española de Protección de Datos (AEPD) and another[28] is instructive here. The outcome of the case has meant that individuals may submit a request to a search engine to have links to personal content about themselves being removed from the search engine’s database[29]. On the basis of Directive 95/46 (The Data Protection Directive) 1995[30], search engines may be obligated to “delete any links to personal data which are inadequate, irrelevant and no longer relevant data”[31] in response to such a complaint, subject to there being a balance struck between the right to privacy and the public interest in having access to information.[32]

One can envisage there being huge administrative costs to search engines[33] as a result of the decision and, in any case, search engines may only be compelled to remove links and have no jurisdiction to remove the actual content. However, the decision does recognise “the role search engines play in facilitating access to information in today’s society”[34]. Of course, if there was an effective legal sanction, search engines may be compelled to act[35] without applications from individuals and such a course of action against search engines would be unnecessary[36]. This is a further point in favour of the government’s reforms.

In conclusion, it is imperative that revenge pornography becomes a crime and thus the government’s reforms cannot be considered misguided. However, the fact that they do not go far enough may indicate that the reprehensible practice will continue and as such, more must be done in order to curb the occurrence of revenge pornography in the UK.

Word Count – 1625

Footnotes

[1] Ministry of Justice and Rt Hon Chris Grayling MP, ‘New Laws to Tackle Revenge Porn’ (October 2014) (No Page number available) available at https://www.gov.uk/government/news/new-law-to-tackle-revenge-porn accessed 31/1/2015

[2] Parliamentary Business, ‘Criminal Justice and Courts Bill: Amendments to be Moved on Report’ (11th October 2014) available at http://www.publications.parliament.uk/pa/bills/lbill/2014-2015/0043/amend/am043-g.htm accessed 31/1/2015

[3] Agate J and Ledward J, ‘Social Media: How the Net is Closing in on Cyber Bullies’ (2013) Ent LR 24(8) 263-268, 283

[4] Hansard Debates (HC) CM 140619 ‘Revenge Pornography’ per Maria Miller at Column 1370 available at http://www.publications.parliament.uk/pa/cm201415/cmhansrd/cm140619/debtext/140619-0004.htm accessed 1/2/2015

[5] Agate J and Ledward J, ‘Social Media: How the Net is Closing in On Cyber Bullies’ (2013) Ent LR 24(8) 263-268, 263

[6] House of Commons Culture, Media and Sports Committee, ‘Online Safety – Government Response’ March 2014 HC 279, 32, available at http://www.publications.parliament.uk/pa/cm201415/cmselect/cmcumeds/517/51704.htm accessed 1/2/105

[7] Mitchell J, ‘Censorship in Cyberspace: Closing the Net on Revenge Porn’ (2014) Ent LR 25(8) 283-290, 283

[8] Hall L and Glueck S, ‘Cases on the Criminal Law and Its Enforcement’ (Third Edition, West Publishing Company 1958) 15

[9] Hart HM Jnr, ‘The Aims of the Criminal Law’ (1958) LCP 23(3)401-441,406 available at http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2758&context=lcp accessed 1/2/2015

[10] ibid

[11] CPS Guidelines on Prosecuting Cases Involving Communications Sent Via Social Media’ (2013) Para 22 available at http://www.cps.gov.uk/legal/a_to_c/communications_sent_via_social_media/ accessed 31/1/2015

[12] Section 2 Protection from Harassment Act 1997

[13] Agate J and Ledward J, ‘Social Media: How the Net is Closing in on Cyber Bullies’ (2013) Ent LR24(8) 263-268, 263

[14] Mitchell J, ‘Censorship in Cyberspace: Closing the Net on Revenge Porn’ (2014) Ent LR 25(8) 283-290, 283

[15] section 1(1)(a)(i) Malicious Communications Act 1988

[16] ibid at section 1(1(b)

[17] CPS Guidelines on Prosecuting Cases Involving Communications Sent Via Social Media’ (2013) Para 39 available at http://www.cps.gov.uk/legal/a_to_c/communications_sent_via_social_media/ accessed 31/1/2015

[18] Chambers v DPP [2012] EWHC 2157 (Admin) per The Lord Chief Justice at [28]

[19] Agate J and Ledward J, ‘Social Media: How the Net is Closing in on Cyber Bullies’ (2013) Ent LR24(8) 263-268, 264

[20] Tausz D and Ashworth AJ, ‘Case Comment - Harassment, Alarm or Distress: Religiously Aggravated Offence’ (2003) Crim LR Dec 888-890, 889

[21] http://news.bbc.co.uk/1/hi/wales/8534899.stm accessed 31/1/2015

[22] Editor, ‘Rape Law in Practice’ (1997) Crim LR Feb 73

[23] Bernal P, ‘A Defence of Responsible Tweeting’ (2014) Comms L 19(1) 12-19, 15

[24] Hansard Debates (HC) CM 140619 ‘Revenge Pornography’ per Under Secretary of State for Justice Mr Shailesh Vara at column 1373 available at http://www.publications.parliament.uk/pa/cm201415/cmhansrd/cm140619/debtext/140619-0004.htm accessed 1/2/2015

[25] Miller M, ‘We Must Treat Revenge Porn as the Crime That It Is’ (6th October 2014) The Telegraph available at http://www.telegraph.co.uk/women/womens-life/11143857/We-must-treat-revenge-porn-as-the-crime-it-is.html accessed 1/2/2015

[26] Hansard Debates (HC) CM 140619 ‘Revenge Pornography’ per Maria Miller MP at column 1369 available at http://www.publications.parliament.uk/pa/cm201415/cmhansrd/cm140619/debtext/140619-0004.htm accessed 1/2/2015

[27] ibid per Martin Horwood MP

[28] Google Spain SL and another v Agencia Española de Protección de Datos (AEPD) and another (Case C- 131/12) [2014] QB 1022

[29] ibid at [76][78]

[30] Directive 95/46 (The Data Protection Directive) 1995

[31] Horne J, ‘Google’s Algorithms, Search Results and Relevancy under Data Protection Law – Whose Data Quality?’ (2014) Ent LR 25(6) 209-212, 209

[32] Google Spain SL and another v Agencia Española de Protección de Datos (AEPD) and another (Case C- 131/12) [2014] QB 1022at [81]

[33] Koutrakos P, ‘To Strive, To Seek, To Google, To Forget’ (2014) EL Rev 39(3) 293-294, 293

[34] Smith D on the Information Commissioner’s Official Blog, ‘Four Things We’ve Learned from the EU Google Judgment’ (2014) available at http://iconewsblog.wordpress.com/2014/05/20/four-things-weve-learned-from-the-eu-google-judgment accessed 1/2/2015

[35] Hansard Debates (HC) CM 140619 ‘Revenge Pornography’ per Martin Horwood MP at column 1369 available at http://www.publications.parliament.uk/pa/cm201415/cmhansrd/cm140619/debtext/140619-0004.htm accessed 1/2/2015

[36] Stokes S, ‘Google Spain and Google on the Right to Be Forgotten: A Case to Quickly Forget?’ (2014) available at http://www.blakemorgan.co.uk/training-knowledge/articles/2014/09/12/google-spain-right-be-forgotten/ accessed 1/2/2015

Bibliography

Table of Legislation

  • Malicious Communications Act 1988
  • Protection from Harassment Act 1997
  • Communications Act 2003
  • Criminal Justice and Courts Bill 2014

Table of European Legislation

  • European Convention on Human Rights (ECHR)1950
  • Directive 95/46 (The Data Protection Directive) 1995

Table of Cases

  • Chambers v DPP [2012] EWHC 2157 (Admin)
  • Google Spain SL and another v Agencia Española de Protección de Datos (AEPD) and another (Case C- 131/12) [2014] QB 1022

Secondary Sources