There have emerged calls to create a specific law on non-consensual pornography a criminal offense that prohibits the misguided appalling practice. Not only to the offensive practice ineffective individuals’ behavior, but also jeopardize the practice of criminal law.
Critically discuss, basing on the existing criminal legislation and possible alternative remedies compromising non-criminal regulation of online behavior.
Justine Mitchell from the onset argues that there is no sui generis law responsible for regulating the publication of non-consensual photography and its part redundant in Wales and England. Section 33 of Criminal Justice and Courts Act 2015 distinguishes the publication of this category of pornography a criminal offence (Bunting, 2015). Nevertheless, the implementation of the act is not much enforced (sect. 33 came into enforcement as of 13th April 2015). However, it is important to address the point about this law since it is not implemented by many other jurisdictions in the United Kingdom as well as across the world. It is necessary to note that the question has academic and policy value.
The Harm Occasioned by Revenge Porn
The incorporation of Revenge porn has been found to be booming more and more. This has brought a lot of challenges and horrific incidents to its victims. The criminal scale in non-consensual pornography is also staggering with reports indicating that there are tens of thousands of victims of these behavioral practices (Janice, 2012). The revenge porn is problem has developed to a non-event in the few past years. The crime constitutes of posting’s other people’s sexual/intimate videos/pictures online with disparaging content on their former lover, crucially as well as presenting their contact details such as home addresses or place of work or family members.
When individuals’ contact details are published online, they receive strange calls and communication from strangers asking for sexual advances. Not only sexual issues arise with posting this information online but also, the victims experience revenge porn such are rape threats or awful testimonials from viewers of these websites. Janice (2012) asserts that there is no doubt that porn revenge causes a manifold damage to the victims including invasion of their privacy, harassment, and can result to breakdown of the victim’s relationships with their loved ones or colleagues at workplace. This may cause the victims’ their hard-earned titles, positions or proceeds due to sacking from work, quitting for the fear of shame, or unnecessary suffering from strangers; from previous cases, some of the victims of revenge porn had to change their names to conceal shame or committed suicide due to developed depression of the event occurred. Besides, revenge porn discloses victims to unlimited risks of harm from other online users, with some victims experiencing assault, stalking, and even killed.
The Law before the Criminal Justice and Courts Act (CJCA 2015)
Before the formulation of any specific offence for revenge porn, the practice was in limbo as it fell largely within the field of protecting the person’s image or identity. Generally, the English law does not identify a free standing right to rheostat the reproduction of a person’s image/identity. The Constitution does not provide specific “invasion of privacy” to help the courts rules on such cause of action. Nevertheless, the people in the United Kingdom have their rights to private and family lives covered and protected in the European Convention of Human Rights (ECHR). These provisions are directly enforced by the courts by referencing the Human Rights Act 1998 (Bunting, 2015). However, the ECHR has less horizontal effect thus the little options to address non-consensual pornography.
Earlier before the enactment of CJCA 2015, action in tort was the only horizontal redress for the victims of revenge porn, it applied strictly for the breach of confidence (Bunting, 2015). The legal framework for the breach of confidence is elevated to punish those who disseminate confidential images with or without marriage that allows to extend to the non-consensual pornographic videos or images. Additionally, those who shared such videos or images are culpable for committing a crime that is punishable before the law pursued under the breach of confidence. However, it is difficult to imply the obligation of confidence since they are not directly related to the relationship of confidence with the victim. This results from the fact that ‘a’ duty of confidence [arises] an individual ought to know or knowns when they receive information as reasonable or fairly presented to be classified as confidential or the information appears as private (Ryan, 2016).
Reliance on this breach of confidential action that is common among all the civil law remedies has presented notable problems. Hence can be categorized as the costs of proceeds and the sheer number of potential defendants. Legal process is complex with stressful endeavors and costly proceedings despite the recently adopted reforms formulated to reducing costs as well as simplifying the court processes. Examples are the Jackson reforms and Woolf reforms. The complexity could make it impossible to acquire a remedy or put off victims of revenge porn based on their ability and means to get funding. Lang (2013) denotes that the other challenge is that once the person’s identity or images are uploaded, the spread so quickly and the victim might need to start action many and probably unmanageable defendants if they indent to prevent them from continuing to host and share the offending material that makes the process difficult and nearly impossible. Use of non-consensual pornography law will help deter and prevent internet users from invading other people’s privacy and family. Adoption of a strong and enough criminal penalty would reduce or prevent the situation from escalating to the extent where parties seek for civil action.
It is important to note that it is theoretical possible for victims of revenge porn to gain measure of redress through the law of copyright. This whole thing depends largely on the situation, there are few copy right claims on video/and or photograph in which the victims are majorly associated with (Ryan, 2016). Whereas, the victim contributed to the circulating item in any way may be taking a video or photography or even posted it personally (this contributes to self-made revenge porn) orchestrated by the victim. The copyright is identified with the producer of the content making it difficult to rule, such incidents accumulate for about 80% of reported cases on revenge porn (Lang, 2013). Moreover, videos and photographs are protected as artistic works in the jurisdictions in the U.K. under section 4 of the Copyright, Designs and Patents act 1988 (Bunting, 2015).
The strategy provides victims with certain potential resolutions. In this case and most importantly, the affected individual could write a takedown notice to the website owner and warning against the revenge porn hosted about the victim. The approach is viable especially for the websites that post third party content. When the website owners are put on notice, they will consider the content to publish and prevent them from sharing revenge porn in regard to lack of information over the individuals’ image/identity confident or infringement of their copyrights. According to Laird (2013), if the website owner refuses to pull down the offending materials published on their site, the victims is legally allowed to initiate a civil action against them on grounds that they are publishing content whose copyright is owned by the victim. Court injunctions and damages are the potential remedies in the application of sui generis law where the website owner is restricted from continuing use of the aforesaid content to share or publish. It is one of the most wanted law provisions by victims of revenge porn more than seeing the original perpetrators (most likely the ex-lovers) brought to books.
Therefore, it is essential to adopt the copyright route in exercising criminal law to seal the loopholes for revenge porn. Besides, it is simple and easier to serve the website owner a takedown notice (no costs involved) (Ryan, 2016). Just like any other method, it has several drawbacks as well. An example is when the website owner chooses to ignore the takedown notice and claim not to have received such orders. This would mean that the victim of revenge porn will have to continuously bare the shame or carry the stressful legal action to compel the website owners remove the videos and/or pictures published (Laird, 2013). In such cases, the content risk going viral making it difficult even with the court conjunctions, the information would have spread beyond control leaving the victim with incontrollable attempts to sending the takedown messages across the social medial platforms its posted.
Other than image-based rights, privacy and copyright rights there exist several sets of potential avenues for redress int eh United Kingdom’s jurisdiction which could be relevant based on the circumstances. Example is when the perpetrator uploads other people’s video or image repeatedly, such behaviors in conjunction with other acts could lead to a campaign of harassment which is termed as a criminal offence under the Protection from Harassment Act 1977 (Laird, 2013). Most common, the publication of such information is accompanied by threats and blackmail, this makes the course of action fall under section 21 of the Theft Act 1968 (Bunting, 2015). Laird (2013) states that the prosecutor in this criminal offence can further draw from the Malicious Communications Act 1988 and/or Communications Act 2003 to apply for redress (Bunting, 2015). However, these laws will only apply if the if the suspect or defendant accepts to have made such publications in grossly offensive, indecent, or threatening manner that amounts to publishing information with intent to cause distress or anxiety. Also, the case can be argued when the defendant attained the published materials from an unauthorized computer access (this the most likely be the case since most of modern smartphones qualifies to be classified as computers) hence the judgement of offence as directed under the Computer Misuse Act 1990 (Laird, 2013). Likewise, there is possibly of voyeurism in the event the video and/or images are taken without the knowledge of the victim made out of the Sexual Offences Act 2003. Click here to Place Your Order.
Bunting, D. (2015). Revenge porn: will the new laws make any differences? Feburary 17. ttp://www.halsburyslawexchange.co.uk/revenge-porn-will-the-new-laws-make-any-difference/
Janice, R. (2012). If I cannot Have Her Everybody Can: Sexual Disclosure and Privacy Laws. Feminist Perspective in Tort Law (Janice Richard & Ericka Rackley eds, 2012) 145.
Laird,L. (2013). Victims are Taking on ‘Revenge Porn’ Websites for Posting Photos They Didn’t Consent To (2013) November 1, A.B.A. J. http://www.abajournal.com/magazine/article/victims_are_taking_on_revenge_porn_websites _for_posting_photos_they_didnt_c/
Lang, R. (2013). Lawmaker, ‘A.G. Candidate Wants Crack down on “Revenge Porn’,”’ October 29, WBAL NEWS. http://www.wbal.com/article/103619/37/templatestory/Lawmaker-A
Ryan, E. M. (2016). Sexting: How the State Can Prevent a Moment of Indiscretion from Leading to a Lifetime of Unintended Consequences for Minors and Young Adults (2016) November, 96 IOWA L. REV. 357, 363-64.