Legislative Approaches to Combating ‘Revenge Porn’: A Multijurisdictional Perspective

Legislative Approaches to Combating ‘Revenge Porn’: A Multijurisdictional Perspective Abstract This article aims to provide a nuanced articulation of the quickly evolving and largely converging legislative approaches to combatting the phenomenon colloquially referred to as ‘revenge porn’ from a multijurisdictional perspective. Through comparative doctrinal analyses, this article argues that while there has been increased legislative activity aimed at curtailing this image-based scourge of the 21st century, particularly in the United Kingdom, Australia, Canada and New Zealand, a number of outstanding theoretical and operational challenges and complexities nonetheless remain, which necessarily require further research and analysis, given the multifaceted nature of the phenomenon. The article concludes by exploring how recent developments in more developed jurisdictions can inform the reform of existing laws in lesser developed jurisdictions, such as the Commonwealth Caribbean. INTRODUCTION The phenomenon colloquially referred to as ‘revenge porn’ is a pernicious affront to its victims’ dignity and sexual autonomy, and, given that its primary victims are women, it can be aptly described as ‘cyber misogyny’.1 Perpetrators of this rapidly evolving phenomenon cowardly hide behind the keypad, mouse and screen only to disclose the most intimate of images, usually of their former partners, on various online platforms, in breach of their moral, ethical and legal obligation of confidence. In this context, ‘revenge porn’, more than anything else, is about coercion, control, and a malevolent desire to invade the personal space of victims in a manner that almost invariably leads to distress, humiliation, embarrassment, and even suicide. Notwithstanding the now axiomatic recognition that this form of ‘non-consensual pornography’ is on the increase across various jurisdictions, including the Commonwealth Caribbean, existing laws have been slow to keep apace with the evolving modalities of the phenomenon, to the extent that some perpetrators now act with virtual impunity in light of the lacunae in the existing legal framework. To the extent that the phenomenon of ‘revenge porn’ has not been thoroughly addressed in the existing literature from a multijurisdictional perspective, this article intends to provide a nuanced articulation of existing legislative approaches to combating revenge porn across various jurisdictions. Through this largely comparative doctrinal analysis, the article seeks to highlight some of the major challenges, complexities, and theoretical debates in this area, thus informing possibilities for future research and reform in this relatively new area of law. The Contested Meaning of ‘Revenge Porn’ For a long time, the unauthorized disclosure of intimate images has been colloquially referred to as ‘revenge porn’. In recent times, however, a wave of criticisms have been directed at the use of this ‘anachronistic’ concept, with leading scholars in the field arguing for the adoption of more apt terminological references, including ‘non-consensual pornography’2 and ‘image-based sexual abuse’,3 among others. The central argument advanced by these scholars has been that the term ‘revenge porn’ is both too narrow and misleading.4 More specifically, scholars argue that the traditional reference to ‘revenge porn’ does not take account of the fact that intimate images may not only be distributed as a result of a relationship coming to an end, but also in circumstances where a victim’s computer has been hacked and their images have been disclosed to the public without consent.5 Even further, it has been argued that the notion of ‘revenge’ somewhat suggests that the perpetrator’s vengeful act can in some ways be justified as it is a response to something wrong which the victim has done. The truth, however, is that the phenomenon, in most cases, involves a malevolent response to victims exercising their autonomy to move on from or out of a relationship that might not be in their best interest.6 As such, the ‘revenge’ exacted cannot, from any moral standpoint, ever be justified. Yet, still, other scholars contend that language matters and that, in this regard, it is vital to frame the phenomenon using clear, non-emotive terms that are focused on behaviour and not motivations or intentions. In any event, they argue, ‘revenge’ is not always the only motive behind the disclosure of intimate images; in many instances, perpetrators seek financial gain or notoriety or simply entertainment when disclosing the intimate images of victims without their consent.7 Moreover, the colloquial concept, it is argued, may encourage victim blaming, as it (in)advertently categorizes the victims’ actions as ‘pornography’ when, in reality, it is anything but. In short, the term ‘revenge porn’ reinforces the view that victims are somehow responsible for the misuse of their intimate images because they supposedly consented to the creation of these images in the first place. The challenge with this approach, however, is that it misrepresents victims’ sexual autonomy and mischaracterizes consent when given in the context of a relationship built on confidence, with consent to the subsequent disclosure of said images to third parties.8 This has serious adverse implications for victims, and, in particular, the way in which these victims are treated by the law, law enforcement officials, victim support personnel, and the public at large. Given the myriad objections associated with the term ‘revenge porn’, this article will adopt the more nuanced terminological reference crafted by Professors McGlynn and Rackley, ‘image-based sexual abuse.’9 Impact of Image-Based Sexual Abuse Victims of revenge porn are impacted in numerous adverse ways.10 To date, academic research and personal stories have made it unequivocally clear that image-based sexual abuse exposes victims to feelings of shame, humiliation, personal violation, and powerlessness.11 In addition, the phenomenon exposes victims to fear and apprehension about their personal safety,12 as they have a sense of being watched or constantly ‘under surveillance’.13 Numerous victims have also experienced hypervigilance online by, for example, compulsively checking websites to see if more images have been uploaded, and even more have been approached by strangers and propositioned for sexual activities.14 Many experience disruptions to their education or employment; their reputation is typically irreparably damaged; and their current or future intimate relationships with spouses, family, and friends, as well as future employment prospects, are adversely affected.15 Victims experience social withdrawal; body shame; trust issues; anxiety, sleeplessness, and nightmares; and in extreme cases, even suicidal ideation and/or attempts at suicide.16 In short, the humiliation, distress, embarrassment, and shame brought about by the unauthorized disclosure of intimate images is vast, and accordingly cannot be underestimated.17 The Profile of Image-Based Sexual Abuse While exact figures as to the true extent of image-based sexual abuse are currently unavailable, the Economist estimates that globally, there are at least 3000 pornography websites operating with a revenge purpose. This is unsurprising, however, given that across various jurisdictions,18 research not only points to the existence of instances of image-based sexual abuse in which individuals post on Facebook and Whatsapp,19 but, quite worryingly, a steady increase in reported incidents in recent years in which website operators profit from hosting the intimate images of victims.20 In the Australian context, a 2015 survey by the Royal Melbourne Institute of Technology (RMIT) reported that 1 in 10 Australians have had a nude or semi-nude image of them distributed online or sent onto others without their permission.21 Similarly, in the United Kingdom, more than 200 people have been prosecuted since the England and Wales’ unauthorized disclosure of intimate images statute came into force in April 2015,22 which represents only the tip of the iceberg in relation to the overall number of persons who have actually been threatened with or have had their intimate images disclosed without their consent.23 In the United States, the Data and Research Institute has reported that 1 in 25 (4 per cent) Americans has been a victim of threats or posts of nearly nude or nude images without their permission.24 The report goes further to estimate that 1 in 10 young women have been threatened with the possibility of public posting of their intimate images, and that young people ages 15–29 are the age group most likely to report being threatened with the potential sharing of nude or nearly nude images, with 1 in 14 (7 per cent) internet users under the age of 30 experiencing this compared with 2 per cent of adults ages 30 and older.25 Although current figures are not exacting, it has been reported that many victims of unauthorized disclosure of intimate images (43 per cent) have had an account or computer hacked and their image posted online.26 More generally, the report points out that LGB internet users are far more likely than those who identify as heterosexual to have experienced threats of or actual unauthorized disclosure of intimate images. In fact, 15 per cent of internet users who identify as lesbian, gay, or bisexual (LGB) noted that someone has threatened to share a nude or nearly nude photo or video of them without their permission, a far higher rate than among heterosexual internet users (2 per cent).27 The problem of the unauthorized disclosure of intimate images is not unique to these jurisdictions, however; other countries, such as Japan have estimated that the number of cases reported to police more than tripled, to 27,334, between 2008 and 2012.28 In the same vein, an increasing number of victims in the Canada,29 New Zealand,30 and, more recently, the Caribbean31 have reportedly been the subject of the unauthorized disclosure of their intimate images. These startling figures undoubtedly suggest that the unauthorized disclosure of intimate images is, indeed, a global concern, which, because of its quickly evolving nature, must necessarily be appropriately addressed. LEGISLATIVE APPROACHES TO ADDRESSING IMAGE-BASED SEXUAL ABUSE For a number of years, there was a relative dearth of legislation specifically targeting the phenomenon of revenge porn.32 Against this backdrop, across various jurisdictions, prosecutors sought to rely on various species of ad hoc criminal legislation to prosecute perpetrators of the offence, albeit with limited success, as such legislation were not specifically designed at the outset to target this relatively new phenomenon.33 For example, in Police v. Ravshan Usmanov,34 a New South Wales 20-year-old man was sentenced to six months imprisonment for the offence of publishing an indecent article, contrary to section 578C of the Crimes Act 1900 (NSW), after he uploaded naked images of his ex-girlfriend to Facebook, while in New Zealand in Police v. Joshua Ashby,35 the defendant was convicted and sentenced to four months imprisonment for distributing an ‘indecent model or object’ to the public, contrary to section 124(1)[a] of the Crimes Act 1961, after he logged onto his ex-girlfriend’s Facebook account, posted a nude picture of her, unlocked her privacy settings (thus making the image available to the public for a period of 12 hours until the account was shut down by the police and Facebook) and changed her password. Though encouraging, these cases make clear, as intimated by Judge Becroft in Police v. Joshua Ashby, that non-specific image-based sexual abuse legislation requires a tremendous degree of judicial manoeuvring36 in order to adapt old print laws to cover the challenges of the internet age so as to deal with what he described as the ‘incalculable harm to someone’s reputation’.37 The same argument about the need for judicial manoeuvring to effectively treat with the evolving challenge of image-based sexual abuse can be made in relation to the laws previously utilized in the United Kingdom to treat with the phenomenon; that is, the Malicious Communications Act 1988 which makes it an offence to send electronic communications which are indecent, grossly offensive, threatening, or false, provided there is an intention to cause distress or anxiety to the recipient; the Communications Act 2003 which makes it an offence to send or cause to be sent through a ‘public electronic communications network’ a message that is ‘grossly offensive’ or of an ‘indecent, obscene or menacing character’; the Harassment Act 1997 which treats as an offence a course of harassing conduct directed towards an individual; the Protection of Children Act 1978 which treats with situations where the intimate images may have been taken and disclosed when the victim was under 18; and the Sexual Offences Act 2003 which applies where intimate images are used to coerce victims into further sexual activity.38 The challenge of using old laws which were not specifically designed to combat image-based sexual abuse on an ad hoc basis to deal with the phenomenon is also problematic in the Commonwealth Caribbean, where there is an enduring lack of certainty as to whether the provisions of relevant Cybercrimes legislation, such as section 9(1) of the recently amended Jamaica Cybercrimes Act, 2015, sufficiently covers the phenomenon. Under this Act, a person commits an offence and is liable to a term of imprisonment not exceeding 4 years (on summary conviction) or 10 years (on conviction on indictment), respectively, if he - (a) uses a computer to send to another person any data (presumably including an image) that is obscene, constitutes a threat, or is menacing in nature; and (b) intends to cause, or is reckless as to whether the sending of the data causes, annoyance, inconvenience, distress, or anxiety, to that person or any other person. Given the now axiomatic uncertainties and challenges surrounding the use of non-specific image-based sexual abuse offences to prosecute the phenomenon, a number of jurisdictions have gone ahead to enact specific legislation aimed at more effectively combatting the unauthorized disclosure of intimate images. Several arguments have been advanced in favour of such legislation. First, legislation in this area would send a strong message that this type of conduct is unacceptable and serve to deter potential perpetrators from offending.39 Second, legislation in this area would fill the gap within the existing law in various jurisdictions, and effectively serve a symbolic and educative function for society.40 In other words, by providing a tailored image-based sexual abuse offence, this behaviour would be appropriately identified to the public and would clearly highlight and reinforce the ‘wrongfulness’ of image-based sexual abuse.41 Indeed, if people become aware that they may be committing an offence by sharing intimate images, they might become a little bit more discretionary about what they share and in what circumstances.42 Finally, enacting specific legislation may also appropriately address the fact that there is often an international element in the disclosure of intimate images. States may, in this regard, rely on mutual legal assistance if criminal prosecutions are brought against perpetrators operating across international boundaries. Australia Although legislative activity aimed at combating image-based sexual abuse is at an embryonic stage in Australia, several steps have quite commendably been taken to date towards addressing the phenomenon.43 At the Commonwealth level, the Criminal Code Amendment (Private Sexual Material) Bill 2015, which targets individuals who share,44 or threaten to share,45 private sexual images or film recordings of others without consent and with the intention of, or where there is the risk of, causing that person harm or distress, as well as those who operate image-based sexual abuse websites,46 has received its second reading, and is likely to become operational in the not too distant future. The Bill, which prescribes a sentence of up to three years imprisonment, goes further than section 33 of the England and Wales Criminal Justice and Courts Act (2015)47 in that it not only criminalizes instances where intimate images are recklessly (as opposed only to intentionally) disclosed without authorization, as well as the threat to disclose intimate images. The Bill also goes further than the England and Wales Act by targeting persons who possess, control, produce, supply, or obtain private sexual material for a commercial purpose or for the purpose of obtaining a benefit, which might presumably curtail the activities of specialized ‘image-based sexual abuse’ website operators. The maximum penalty prescribed by the Australian Act for this latter offence is five years imprisonment. It is important to note that, to date, at the state level, only two Australian states have specifically criminalized image-based sexual abuse through legislative enactments. The first is South Australia, which in 2013 enacted section 26C(1) of the Summary Offences (Filming Offences) Amendment Act 2013 (SA), thereby making it an offence to distribute ‘invasive images’ of a person without their consent.48 The concept of an ‘invasive image’ means ‘a moving or still image of a person (a) engaged in a private act; or (b) in a state of undress such that the person’s bare genital or anal region is visible, but does not include an image of a person under, or apparently under, the age of 16 years or an image of a person who is in a public place’.49 Interestingly, unlike the proposed Commonwealth legislation, this Act does not appear to require that an intent to cause distress, which, while making it easier to prosecute the offense, raises questions as to whether such an approach is demonstrably justified, that is, a proportionate approach, having regard to the countervailing right to freedom of expression.50 The same questions arise in relation to section 41DA(1) of the Victoria Summary Offences Act 1966 (Vic), which was amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (Vic), and which provides for the imposition of two years imprisonment where: (a) a person (A) intentionally distributes the intimate image of another person (B) to a person other than B; and (b) the distribution of the image is contrary to community standards of acceptable conduct. It is to be noted that this notion of ‘community standards of acceptable conduct’ is not defined in the Act. However, it can be argued that, having regard to the English offence which requires that the image or film be private, which is defined as something that is not of a kind ordinarily seen in public, a similar reading of the ‘community standards’ requirement may be appropriate.51 That said, unlike the South Australia Act, the Victoria Act specifically prohibits the making of threats (whether implicitly or explicitly or by conduct) concerning the distribution of intimate images if the distribution of the image would be contrary to community standards of acceptable conduct, and the perpetrator intends that the victim will believe, or believes that the victim will probably believe, that he will carry out the threat, pursuant to section 41DB(1). Notwithstanding the noble recognition that threats to distribute intimate images can be used to coerce victims to remain in abusive relationships, it should be noted that an offence against section 41DB(1) carries a maximum penalty of one year imprisonment, which is a third of the penalty proposed by the Criminal Code Amendment (Private Sexual Material) Bill 2015. Canada Canada, like England and Wales, has forged ahead with creating a specific offense that appropriately captures the unauthorized disclosure of intimate images. The Protecting Canadians from Online Crime Act 2014, which entered into force in March 2015, inserts an offence into section 162.1 of the Canadian Criminal Code, so that any person who ‘knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image’ of another person knowing the person depicted in the image did not consent, or being reckless as to this, is guilty of an offence.52 Unlike the England and Wales Act, the amended Canadian Criminal Code does not only prohibit intentional disclosure, but also reckless disclosure. That said, the Act includes a defence, whereby no offence will be committed if the ‘conduct that forms the subject-matter of the charge serves the public good and does not extend beyond what serves the public good’.53 For the purposes of this defence, it is a question of law whether the conduct serves the public good and whether there is evidence of this, but it is a question of fact whether the conduct does or does not extend beyond what serves the public good and the motives of the accused are irrelevant in this assessment. It is important to note that the Canadian offence includes a more substantial maximum penalty of five years imprisonment compared to the maximum two years imprisonment54 under the Victorian and English offences. The Scottish offence, discussed below in respect of the Abusive Behaviour and Sexual Harm (Scotland) Act, also carries a maximum penalty of five years imprisonment.55 Moreover, it is also worth noting that the Canadian Act, quite progressively, also makes complementary amendments to authorize the removal of such images from the internet and the recovery of expenses incurred to obtain the removal of such images; the forfeiture of property used in the commission of the offence; a recognizance order to be issued to prevent the distribution of such images; and the restriction of the use of a computer or the internet by a convicted offender. New Zealand New Zealand, in keeping with the global legislative trend against image-based sexual abuse, enacted the Harmful Digital Communications Act 2015 (NZ) (the HDCA Act) in 2015. Section 22 of the Act creates the offence of ‘causing harm by posting digital communication’, which is established where: (a) the person posts a digital communication with the intention that it cause harm to a victim; and (b) posting the communication would cause harm to an ordinary reasonable person in the position of the victim; and (c) posting the communication causes harm to the victim. In determining whether a post would cause harm, the court may take into account any factors it considers relevant, including: (a) the extremity of the language used; (b) the age and characteristics of the victim; (c) whether the digital communication was anonymous; (d) whether the digital communication was repeated; (e) the extent of circulation of the digital communication; (f) whether the digital communication is true or false; and (g) the context in which the digital communication appeared.56 A person who commits an offence against this section is liable on conviction to (a) in the case of a natural person, imprisonment for a term not exceeding two years or a fine not exceeding $50,000 and (b) in the case of a body corporate, a fine not exceeding $200,000.57 Interestingly, unlike the statutes previously discussed, the New Zealand Act defines ‘harm’ as ‘serious emotional distress’,58 and defines ‘communication’ to include the sending or posting of an intimate visual recording (including still pictures) of another individual or an attempt to do so.59 Online content hosts can be held liable in respect of specific content of a digital communication posted by a person and hosted by the online content host. Despite the fact that since its enactment section 22 has been relied upon to charge over 12 persons for image-based sexual abuse, some of whom have been convicted and sentenced to periods of imprisonment,60 it can be argued that, unlike the Scottish legislation, the New Zealand Act does not appear to treat with instances where a person recklessly posts an intimate image. More generally, the Act has been criticized as for creating an ‘overbroad and vague’ offence,61 particularly the definition of harm which requires ‘serious’ and not mere distress, and the discretionary factors which courts can take into account when assessing whether harm is caused. For these, and other reasons, the offence has been described as a ‘threat to online free speech’.62 The United Kingdom Quite interestingly, there is some degree of divergence in how the respective legislatures have sought to fashion the criminal offence of image-based sexual abuse across the United Kingdom.63 Under section 33 of the England and Wales Criminal Justice and Courts Act (2015) as well as section 51 of the Justice Act (Northern Ireland) 2016, an offence is committed when a person (D) discloses to a third party: (a) a private sexual photograph or film (b) without the consent of the person depicted (V), and (c) with the intention of causing V distress. The concept of disclosure is broadly defined so as to cover both electronic distribution as well as physically showing an intimate image or video to a third party. An image or video is ‘sexual’ if it shows all or part of an individual’s exposed genitals or pubic area; or it shows something that a reasonable person would consider to be sexual because of its nature, or its content, taken as a whole, is such that a reasonable person would consider it to be sexual.64 It would appear, in this connection, that the offence does not cover conduct such as kissing. More generally, it is important to note that the Act specifies that images or videos that were not originally sexual in nature, but which have been edited in some way so that they become sexual, will not be ‘sexual’ within the Act,65 thereby excluding persons from liability if the images are ‘photoshopped’ images, for example; that is, where the person superimposes an image of the victim’s head onto an image of a person engaged in a sexual act, as transpired in Marina Marshall v. Lenisha Augustine.66 It would appear, however, that disclosing a private and sexual image or video that has been altered, for example by disguising the subject’s face, will still be an offence. The offence requires that the prosecution prove that the defendant specifically intended to cause the victim distress,67 and contrary to the approach in Victoria, Canada and Scotland, reckless disclosure will not be sufficient. In other words, an intention to cause distress cannot be implied in England and Wales merely because distress was a natural and probable consequence of disclosure. In contrast to the arguably narrow approach countenanced in England and Wales to the unauthorized disclosure of intimate images, Scotland, through its recently enacted Abusive Behaviour and Sexual Harm (Scotland) Act 2016, introduced the offence of ‘disclosing or threatening to disclose an intimate photograph or film’. A person commits this offence if they disclose or threaten to disclose a photograph or film which shows, or appears to show, another person in an intimate situation and the person intends to cause, or is reckless as to whether the other person will be caused, fear, alarm, or distress.68 Although this offence is similar to the offence introduced in England and Wales, it has a number of features which make it a more comprehensive response to the harm caused by the non-consensual distribution of intimate images. At the outset, the Scottish offence applies not only to circumstances where the perpetrator intends to cause the victim fear, alarm or distress, but also where the perpetrator is reckless as to this. The mental element also applies to intention to cause or being reckless as to whether the victim will be caused ‘fear’ and ‘alarm’ as well as ‘distress’ and so is wider than the English offence which only applies to intention to cause ‘distress’.69 In addition, the Scottish offence also applies to threats to disclose intimate photographs and films, which does not apply in England and Wales. Moreover, the definitions of ‘intimate situation’, ‘film’ and ‘photograph’ in the Scottish Act include a wider range of intimate images than the equivalent definitions in the English legislation. For example, the definition of ‘intimate situation’ applies not only to images where the ‘genitals, buttocks or breasts’ are exposed, but also where they are ‘covered only with underwear’.70 The Scottish offence is also defined to include images which are altered in any way,71 such as where a person's face is superimposed on an intimate image, unlike the more limited approach that is countenanced in England and Wales, where section 35(5)(b) provides that a photograph is not private and sexual if ‘it is only private or sexual by virtue of the alteration’. In view of the above concerns, a number of amendments were proposed72 to buttress the Criminal Justice and Courts Act (CJCA), which were tagged onto section 61 of the Police and Crime Bill, including: creating the offence of threatening to disclose private material; expanding the harm caused to the victim to include ‘alarm’ as well as ‘fear’ or distress; stipulating that an offence under section 33 can be committed not only intentionally, but also where the person in so disclosing the intimate image is reckless as to the causing of fear/alarm/distress; expanding the definition of ‘sexual’ to ensure that the disclosure of pornographic photoshopped images [...] are covered by the law; and adding further offence aimed at criminalizing those who ‘knowingly promote, solicit or profit’ from the disclosure of private material, where there is a reasonable belief that the disclosure has been done without consent. These revisions to the CJCA, which would have directly mirrored the Scottish model,73 were, however, rejected on 16 November 2016.74 In the interim, notwithstanding the areas of divergences averred to above, a number of cases have been decided upon since the enactment of the offence in 2015 in England and Wales, which provide some interesting perspectives as to the evolving nature of the phenomenon in these jurisdictions.75 For example, in R v. Sam Colley,76 the defendant was sentenced to 12 weeks imprisonment suspended for 18 months after he pleaded guilty to the offence of image-based sexual abuse in circumstances where he sent an intimate picture of a woman to members of her family via Facebook and threatened to post further pictures online. Similarly, in R v. Simon Humphrey,77 the defendant was sentenced to 4 months imprisonment suspended for 18 months for setting the victim’s image as his ‘profile picture’ on Facebook intending to humiliate the victim, in circumstances where the victim’s child first noticed the picture being used. In R v. Alex Till,78 the defendant was sentenced to a 12-month community order, handed a fine and ordered to pay costs in circumstances where he sent the victim a Facebook message from a false account using the private sexual photograph of the victim as his profile picture. Further, in R v. William Nelson,79 the defendant was sentenced to 2 months imprisonment suspended for 18 months where he set up a fake Facebook account and posted approximately 30 intimate photographs of the victim, and then sent friend requests to her friends and family from the fake account. Interestingly, women have also to date been convicted under the statute. For example, in R v. Paige Mitchell,80 the defendant was sentenced to 6 weeks imprisonment suspended for 18 months, rehabilitation activity requirement for 50 days and ordered to pay costs where she admitted to posting explicit photos of the victim on to her Facebook profile after an argument. Mitchell went on to caption the pictures with humiliating insults and even referenced the assault. Similarly, in R v. Kaylea Reid,81 the defendant, who had ongoing flirtatious conversations with her employer, was convicted for posting pictures of her naked boss on his wife’s business Facebook page. Interestingly, unlike other offenders, she was spared jail time, and only given a conditional discharge for six months and ordered to pay a victim surcharge fee of £20, because of what the Magistrates described as the victim’s ‘provocative behaviour’. This case is problematic because it reinforces victim blaming, sets a patently dangerous precedent, and wrongfully conflates consent given in the context of flirtatious conversations with consent to disclose the intimate pictures to the public without authorization. That said, it is nonetheless commendable that the Courts have also penalized those who make use of other platforms to commit image-based sexual abuse, apart from Facebook. For example, in R v. Jason Asagba,82 the defendant was prosecuted after he sent the intimate pictures of the victim to the victim’s family via text and hacked into the victim’s Facebook account and shared an intimate image on her timeline. Similarly, in R v. John Duffin,83 the defendant was convicted for saving an intimate picture of a woman and setting it as his ‘Whatsapp’ profile picture, which allowed all of his contacts to view it. Interestingly, also, distributing images on offline platforms has also been met with the robust disapproval of the courts. For example, in R v. Luke Brimson,84 the defendant was sentenced to 24 weeks in prison suspended for 18 months, given a 2-year Restraining Order and made to pay costs, in circumstances where he distributed intimate pictures of a woman inside and outside of a supermarket. One interesting question which has arisen in recent months which merits special attention relates to whether the sentences imposed by Magistrates in image-based sexual abuse cases can be aptly described as having a deterrent effect or overly excessive. This issue arose in David Derbyshire v. R,85 where a man who admitted posting the intimate images of his ex-girlfriend on Facebook and Whatsapp successfully appealed against a sentence of 17 weeks imprisonment, notwithstanding the fact that, as the Magistrate had earlier found, the ‘offence was so serious because it was a massive breach of trust and there were repeated attempts to keep it on Facebook and Whatsapp’. On appeal, the Crown Court substituted the sentence with an 8-week jail term, suspended for 24 months, with a rehabilitation activity requirement of up to 15 days.86 In sum, what these cases87 suggest is that some attempt to curtail the evolving modus operandi of perpetrators of image-based sexual abuse through the imposition of appropriately dissuasive sanctions. That said, it must be borne in mind, as pointed out by Lord Marks in the November 2016 debates, out of 1160 reported instances of image-based sexual abuse between April and December 2015, no action was taken in no less than 61 per cent of cases. In short, it is particularly concerning that many cases were not prosecuted because of insufficient evidence or because the victim did not proceed with the complaint, though this was is not an indication that the incidents did not occur.88 The United States At present, the United States does not have in place a federal offence that prohibits image-based sexual abuse. In mid-2016, however, Democratic Congresswoman Jackie Speier prepared a ‘discussion draft’ of the Intimate Privacy Protection Bill 2015, which is now before the House of Representatives. The Bill, if successfully passed, aims to amend chapter 88 of title 18 of the United States Code, by prohibiting, under §1802, the knowing use of electronic communication services or any other facility to: […] distribute a visual depiction of a person who is identifiable from the image itself or information displayed in connection with the image and who is engaging in sexually explicit conduct, or of the naked genitals or post-pubescent female nipple of the person, with reckless disregard for the person’s lack of consent to the distribution […] The penalty prescribed by the Bill is five years imprisonment, which is consistent with the approach countenanced by the Scottish legislation. On a state level, an estimated 34 States have thus far prohibited the unauthorized disclosure of intimate images through legislation.89 In general, the relevant statutes in the respective States, including Oregon90 and Utah,91 criminalize such disclosure where there is an intention to cause distress. Absent, however, from most states’ statutes are references to recklessness in respect of the distress caused, with the exception of the California Penal Code.92 That said, the penalties prescribed range from between one year and three years, such as the Georgia Code.93 In some instances, legislation, such as the Texas Penal Code,94 also prohibits threats to disclose intimate images, with appropriate defences included where the disclosure is for the purposes investigating crime or in the public interest. Since the enactment of these statutes, a few cases have been decided upon which have sought to interpret and apply the provisions of said statutes, though not without some controversy. In a recent decision—State v. Benjamin Barber95—the Court sentenced the defendant to six months in jail, with five years of probation, in circumstances where he posted sexually explicit videos of himself and his ex-girlfriend to various pornographic websites, contrary to Oregon’s anti-image-based sexual abuse statute. Interestingly, the defendant, in his defence, maintained that he was actually the victim in this case since his posting of the videos was as a result of the victim threatening to use said videos against him as blackmail. The Court, however, rejected the defendant’s defence as being unsubstantiated. In a controversial case recently decided upon, Antigone Books v. Brnovich,96 Arizona’s image-based sexual abuse law prohibiting the unauthorized disclosure of nude images was struck down as being unconstitutional in light of its overbroad, vague, and overly restrictive impact on freedom of speech.97 In this case, a group of Arizona booksellers, publishing companies, news articles, librarians, and photographers (including the Voice Media Group, New Times’ parent company) sued the state Attorney General’s Office, arguing that the law went beyond prohibiting image-based sexual abuse to cover the publication of certain educational materials about breastfeeding, or newsworthy photographs like those taken at the Abu Ghraib prison, among others. In this context, the Court found that the law, in criminalizing the posting of a nude photo with no intent to harm the person depicted, was an unconstitutional infringement of the Claimants’ freedom of speech guaranteed under the First Amendment. In response, the Arizona Office of the Attorney General opted not enforce the statute as it felt that this would ‘certainly result in further litigation’.98 In another case—State of Vermont v. Rebekah Vanburen99—similar concerns were expressed regarding the uneasy relationship between recently enacted image-based sexual abuse legislation and the right to freedom of expression. In this case, the female complainant had taken photographs of herself that were nude or partially nude and sent them to the Facebook account of Anthony Coon, with whom she had a prior relationship. At the time she sent them, however, she was not still in a relationship with Mr. Coon, as Mr. Coon had by that time entered into a relationship with the defendant. The defendant managed to access Mr. Coon’s Facebook account, and posted the intimate photos of the complainant on a public Facebook page, in the process tagging the complainant in them. A number of people saw the photographs in this manner. The complainant learned of the posting and sought to have it taken down. The defendant admitted that she publicly disclosed the intimate images in order to exact revenge or to get back at the complainant for the prior relationship with Mr. Coon and for sending him these sexual photographs. She told complainant she did it and told her she was seeking to harm her reputation in her work; in fact, the defendant allegedly told officers she wondered if complainant had ‘learned her lesson’. Although 13 V.S.A. § 2606(b)(l) prohibits ‘knowingly disclos[ing] a visual image of an identifiable person who was nude or was engaged in a sexual conduct, without his or her consent, with the intent to harm, harass, intimidate, threaten, or coerce the person depicted, and the disclosure would cause a reasonable person to suffer harm’, the Court granted the defendant’s motion to dismiss the claim. The Court, in this connection, found that the statute is unconstitutional under the First Amendment to the United States Constitution in that it is an overbroad restraint on a protected form of speech or expression and not tailored to a compelling or important governmental purpose. While the court accepted that freedom of expression may be limited, the expression sought to be limited—in this case the disclosure of the intimate images—had to fall into one of the exceptions, which includes obscenity, defamation, fraud, incitement, or speech integral to criminal conduct. On reviewing the nature of image-based sexual abuse, the Court found that the phenomenon does not fall onto the ‘obscenity’ category. As such, the statute was subject to strict, rather than rational review, which is a higher threshold to establish its constitutionality. In arriving at its arguably conservative conclusion, the Court made it clear that: While there is argument that ‘revenge pornography’ should be considered obscene simply because of the intent it is used, there is no present authoritative law that would allow this court to take such a step in enlarging the area of unprotected speech under the First Amendment.100 After subjecting the relevant statute to ‘strict scrutiny’, the court found that even if it were to assume that the state met its burden of a compelling governmental interest, that is, its citizens privacy rights and perhaps reputational rights, it did not meet its burden of showing there are no less restrictive alternatives, such as civil penalties that would be as effective. The Court, in additionally, quite interestingly, also had concerns over the reality that the facts of this case were not a clear example of the typical image-based sexual abuse case described in many articles and mentioned in support of the statute. In other words, this was not a case of photographs sent or exchanged during a relationship and then used after the relationship ended, usually unpleasantly. Rather, it involved a situation in which the complainant sent the photographs to a person with whom she had a past relationship, but was not presently in a relationship with. On this point, the Court, quite indifferently, concluded that ‘the possible overbreadth of the statute is of concern’.101 It is submitted that this flawed and parochial understanding of the term ‘image-based sexual abuse’ is anachronistic in nature, and symptomatic of the wider problem of improperly construing the scope of the phenomenon.102 Other Jurisdictions Apart from the jurisdictions identified to above, a number of other jurisdictions from across the globe have taken proactive steps to criminalize image-based sexual abuse. Examples include (a) Israel which passed an amendment to its Prevention of Sexual Harassment Act aimed at criminalizing those who upload intimate photos or videos without the consent of their partners with five years in prison, and victims are eligible for up to 50,000 NIS without proof of damage, and higher compensation if damages are proven103; (b) Germany which amended section 201a of the Criminal Code to prohibit a person from unlawfully and knowingly making available to third parties an intimate picture that was created with or without the consent of another person located in a dwelling or room especially protected from view and thereby violating that person’s intimate privacy104; (c) Japan, pursuant to Article 3 of the Revenge Porn Prevention Act, criminalizes the provision of a private sexual image of another person without the person’s approval via a means of telecommunication to an unspecified number of or to many people, and allows Internet service providers to delete suspected image-based sexual abuse images without the uploader’s consent in specified circumstances105; and (d) Saint Vincent and the Grenadines, pursuant to section 13(3) of the Cybercrimes Act (2016), also criminalizes a person who, intentionally or recklessly, uses a computer system to disseminate an image that exposes the private affairs of another person, thereby subjecting that other person to public ridicule, contempt, hatred, or embarrassment.106 CONCLUSION The foregoing discussion attempted to briefly provide a multijurisdictional perspective on how the phenomenon colloquially referred to as ‘revenge porn’ has evolved over time, the profile of the phenomenon, its impact on its victims, and the challenges and complexities associated with existing legislative approaches to combating image-based sexual abuse. Among other things, this article argued that when the global legal landscape is surveyed, there is a great degree of convergence in some legislative approaches to image-based sexual abuse across multiple jurisdictions, but that there are, indeed, some glaring instances of divergence. Its central argument is that given the multifaceted nature of the phenomenon, legislation must be specifically adapted to with a number of outstanding issues, including the need to rectify the terminological issues associated with the concept ‘revenge porn’, as it can be argued that its narrow definition—‘the unauthorised distribution of intimate images upon the breakdown of a relationship’—has been outlived; ensuring that threats to disseminate intimate images—irrespective of whether or not those images exist—are criminalized; ensuring that legislation across the various states of Federal countries such as Australia and the United States adopts the same or similar approaches to the phenomenon so that such legislation can withstand challenges on the ground of being in breach of the countervailing right to freedom of expression107; ensuring that victims of image-based sexual abuse experience a consistently positive range of responses when reporting their situation to police, and eradicating victim blaming, especially among male victims; targeting websites on which non-consensually shared intimate images are posted, even if they are run overseas; ensuring that encryption technologies that can make it difficult to obtain evidentiary material, particularly from smart phones, are subverted in the interest of prosecuting the phenomenon; and providing appropriate resources to facilitate education and training so that all stakeholders, including the public, are on board in the fight against what some describe as ‘image-based sexual abuse’. In the interim, however, the argument can be made that although considerable progress has been made across multiple jurisdictions towards effectively eradicating image-based sexual abuse, a herculean task awaits countries such as Trinidad and Tobago, among other Commonwealth Caribbean countries, to introduce criminal sanctions to combat this modern scourge. Indeed, as Justice Seepersad warned in Therese Ho v. Lendl Simmons: The impact upon an individual’s privacy is tremendous and the absence of clear and cohesive legislation to protect our citizens’ privacy and to punish those who violate the rights of others, can cause us to descend into a bottomless pit of anarchy. [...] The time for legislative intervention is long overdue […] Given the rapid pace with which the face and fabric of the society has changed and cognizant of the infinite reach of social media, it cannot be denied that the privacy of the person is under attack and there is dire need for the enactment of statute to afford protection for citizen’s personal privacy.108 Footnotes 1 R Hill ‘Cyber-Misogyny: Should Revenge Porn Be Regulated in Scotland, and if so, How’ [2015] SCRIPTed 12, 117. 2 E Poole ‘Fighting Back against Non-Consensual Pornography’ [2015] USFL Rev 49, 181, 184. 3 C McGlynn and E Rackley ‘Not “Revenge Porn”, but Abuse: Let’s Call It Image-Based Sexual Abuse’ Inherently Human, 15 February 2016. 4 MA Franks Criminalizing Revenge Porn: Frequently Asked Questions (University of Miami School of Law, Working Article, 9 October 2013), available at https://articles.ssrn.com/sol3/articles.cfm?abstract_id=2337998 5 M Salter ‘Responding to Revenge Porn: Gender, Justice and Online Legal Impunity’, Article delivered at: Whose Justice? Conflicted Approaches to Crime and Conflict (University of Western Sydney, Sydney, 2013), available at http://s3.amazonaws.com/academia.edu.documents/31955440/MSalter_-_revenge_porn.pdf?AWSAccessKeyId=AKIAJ56TQJRTWSMTNPEA&Expires=1483505209&Signature=7iEFyZFDtb%2B4WvoXMLXowiirS7A%3D&response-content-disposition=inline%3B%20filename%3DResponding_to_revenge_porn_Gender_justic.pdf 6 S Bloom ‘No Vengeance for ‘Revenge Porn’ Victims: Unravelling Why This Latest Female-Centric, Intimate-Partner Offense Is Still Legal, and Why We Should Criminalize It’ [2016] Fordham Urban Law Journal 42, 234, 237. 7 MA Franks ‘Drafting an Effective “Revenge Porn” Law: A Guide for Legislators’ (Cyber Civil Rights, Initiative) 1. 8 R Hill ‘Cyber-Misogyny: Should ‘Revenge Porn’ Be Regulated in Scotland, and if so, How?’ [2015] SCRIPTed 12, 118, 123. 9 C McGlynn and E Rackley ‘Image-Based Sexual Abuse’ [2017] Oxford Journal of Legal Studies 2, doi: 10.1093/ojls/gqw033. 10 M Osterday ‘Protecting Minors from Themselves: Expanding Revenge Porn Laws to Protect the Most Vulnerable’ [2016] Indiana Law Review 45, 555, 559. 11 A Kitchen ‘The Need to Criminalize Revenge Porn: How a Law Protecting Victims Can Avoid Running Afoul of the First Amendment’ [2015] Chicago-Kent Law Review 90, 247, 265. 12 S Bates ‘“Stripped”: An Analysis of Revenge Porn Victims’ Lives after Victimization’ (Master’s Thesis, Simon Fraser University, 2015) 61. 13 Md Nabil ‘From Sex Tapes to Revenge Porn: Construction of a Genre Gender, Sexuality and Power in New Media’ (Master’s Thesis, Stockholm University, 2014) 42. 14 N Maalouf ‘Revenge Porn’ Columbia University Computer, Privacy and The Constitution Blog, 8 March 2015. 15 ‘Action Sheet on Revenge Porn’ McAllister Olivarius (2016), available at http://www.mcolaw.com/white-articles-research/action-sheet-on-revenge-porn/ 16 N Baker ‘Revenge Porn Suicide’ The Sun News Article, 15 September 2016, available at https://www.thesun.co.uk/news/1787316/tiziana-cantone-sex-tape-leak-leads-her-to-commit-suicide-after-she-suffered-barrage-of-online-abuse/ 17 S Bates ‘Revenge Porn and Mental Health: A Qualitative Analysis of the Mental Health Effects of Revenge Porn on Female Survivors’ [2017] Feminist Criminology 12, 22. 18 ‘Revenge Porn: Misery Merchants’ The Economist, 5 July 2014, available at http://www.economist.com/news/international/21606307-how-should-online-publication-explicit-images-without-their-subjects-consent-be 19 A Topping ‘Facebook Revenge Pornography Trial “Could Open Floodgates”’ The Guardian, 9 October 2016, available at https://www.theguardian.com/technology/2016/oct/09/facebook-revenge-pornography-case-could-open-floodgates 20 C Cusack Pornography and the Criminal Justice System (CRC Press Florida 2014) 175. 21 K Ryan ‘Online Abuse Affects 3 in 5 Australians: Study’ RMIT, 16 November 2015, available at http://www.rmit.edu.au/news/all-news/2015/november/online-abuse-affects-3-in-5-australians-study; Anastasia Powell and Nicola Henry, ‘Digital Harassment and Abuse of Adult Australians: A Summary Report’ RMIT (2014) 3 http://research.techandme.com.au/wp-content/uploads/REPORT_AustraliansExperiencesofDigitalHarassmentandAbuse.pdf 22 B Byrne ‘The UK Has Already Prosecuted 206 Cases of Revenge Porn’ Vocativ, 6 September 2016, available at http://www.vocativ.com/356609/the-uk-has-already-prosecuted-206-cases-of-revenge-porn/ 23 J Halliday ‘Revenge Porn: 175 Cases Reported to Police in Six Months’ The Guardian, 11 October 2015, available at https://www.theguardian.com/uk-news/2015/oct/11/revenge-porn-175-cases-reported-to-police-in-six-months 24 A Lenhart, M Ybarra and M Price-Feeney Non-Consensual Image Sharing: One in 25 Americans Has Been a Victim of ‘Revenge Porn’ (Data & Society and Center for Innovative Public Health Research, 13 December 2016) 3, available at https://datasociety.net/pubs/oh/Nonconsensual_Image_Sharing_2016.pdf 25 S Young New Report Shows that 4% of U.S. Internet Users Have Been a Victim of ‘Revenge Porn’ (Data & Society, 13 December 2016), available at https://datasociety.net/blog/2016/12/13/nonconsensual-image-sharing/ 26 Ibid. 27 S Petkar ‘Gay or Bisexual People Four Times More Likely to Be Victims of Revenge Porn’ Metro, 20 December 2016, available at http://metro.co.uk/2016/12/20/gay-or-bisexual-people-four-times-more-likely-to-be-victims-of-revenge-porn-6335974/#ixzz4UqrWhoa4 28 ‘Tougher Laws Advocated to Restrain “Revenge Porno” Posters’ Japan Today, 23 January 2014, available at https://www.japantoday.com/smartphone/view/kuchikomi/tougher-laws-advocated-to-restrain-revenge-porno-posters 29 N Goeteyn and É Gratton Ontario Court Recognizes Existence of New ‘Revenge Porn’ Privacy Tort (Borden Ladner Gervais, 28 January 2016), available at http://blg.com/en/News-And-Publications/publication_4395 30 R Kidd ‘Devastating Effects of Revenge Porn Highlighted’ New Zealand Herald, 20 April 2016, available at http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11625636 31 G Kowlessar ‘Cops: Revenge Porn Cases on the Rise’ Trinidad Guardian, 5 November 2016, available at http://www.guardian.co.tt/news/2016-11-05/cops-revenge-porn-cases-rise 32 J Beyens and E Lievens ‘A Legal Perspective on the Non-Consensual Dissemination of Sexual Images: Identifying Strengths and Weaknesses of Legislation in the US, UK and Belgium’ [2016] International Journal of Law, Crime and Justice 47, 31. 33 M Salter ‘Responding to Revenge Porn: Gender, Justice and Online Legal Impunity’, Article delivered at Whose Justice? Conflicted Approaches to Crime and Conflict (University of Western Sydney, Sydney, 27 September 2013). 34 [2011] NSWLC 40. 35 (2010) District Court of Wellington, New Zealand. 36 J Barrett and L Strongman ‘The Internet, the Law, and Privacy in New Zealand: Dignity with Liberty?’ [2012] International Journal of Communication 6, 136. 37 Ibid. 38 S Pegg ‘Wrong on “Revenge Porn”’ Law Society Gazette, 23 February 2015. 39 ‘Phenomenon colloquially referred to as “revenge porn”’ (Legal and Constitutional Affairs References Committee, February 2016). 40 Ibid. 41 Ibid. 42 DK Citron and MA Frank ‘Criminalising Revenge Porn’ [2014] Wake Forest Law 49, 345, 361. 43 For commentary, see generally, N Henry and A Powell ‘Sexual Violence in the Digital Age: The Scope and Limits of Criminal Law’ [2016] Social & Legal Studies 25, 397; N Henry and A Powell ‘Embodied Harms Gender, Shame, and Technology-Facilitated Sexual Violence’ [2015] Violence Against Women 21, 758; A Powell and N Henry ‘Technology-Facilitated Sexual Violence Victimization: Results from an Online Survey of Australian Adults’ [2016] Journal of Interpersonal Violence, doi: 10.1177/0886260516672055; D Plater ‘“Setting the Boundaries of Acceptable Behaviour”? South Australia’s Latest Legislative Response to Revenge Pornography’ [2016] UniSA Student Law Review 2, 1. 44 474.24E Criminal Code Amendment (Private Sexual Material) Bill 2015 – Using a carriage service for private sexual material: (1) A person commits an offence if (a) the person transmits, makes available, publishes, distributes, advertises or promotes material; and (b) the material is private sexual material; and (c) the person engages in the conduct mentioned in paragraph (a) without the consent of a subject of the material; and (d) the person knows of, or is reckless as to, the subject’s lack of 6 consent; and (e) either: (i) the conduct mentioned in paragraph (a) causes distress or harm to a subject of the material; or (ii) there is a risk that the conduct mentioned in paragraph (a) will cause distress or harm to a subject of the material; and (f) the person engages in the conduct mentioned in paragraph (a) 14 using a carriage service. Penalty: Imprisonment for three years. 45 Ibid, 474.24F Criminal Code Amendment (Private Sexual Material) Bill 2015 - Using a carriage service—making a threat about private sexual material. 46 Ibid, 474.24G Criminal Code Amendment (Private Sexual Material) Bill 2015 – Possessing, controlling, producing, supplying or obtaining private sexual material for use through a carriage service. 47 Section 33(1)(b) Criminal Justice and Courts Act (2015). 48 Section 26C Summary Offences (Filming Offences) Amendment Act 2013 (SA)—Distribution of invasive image (1) A person who distributes an invasive image of another person, knowing or having reason to believe that the other person— (a) does not consent to that particular distribution of the image; or (b) does not consent to that particular distribution of the image and does not consent to distribution of the image generally, is guilty of an offence. Maximum penalty: $10,000 or imprisonment for two years. 49 Ibid, section 26A. 50 J Humbach ‘How to Write a Constitutional “Revenge Porn” Law’ [2014] PACE Law Review 35, 215. 51 J Quirke et al. ‘Report Harmful Communications and Digital Safety’ (Law Reform Commission, 116–2016) 99. 52 Section 162.1 Protecting Canadians from Online Crime Act. 53 Ibid, section 162.1(3). 54 Ibid, section 162.1 (1)(a). 55 Section 2(7)(b) Abusive Behaviour and Sexual Harm (Scotland) Act (2016). 56 Section 22(2) Harmful Digital Communications Act 2015 (NZ). 57 Ibid, section 22(3). 58 Ibid, section 4. 59 Ibid. 60 N Henry and A Powell ‘Beyond the “Sext”: Technology-Facilitated Sexual Violence and Harassment against Adult Women’ [2015] Australian & New Zealand Journal of Criminology 48, 104. 61 J Quirke (n 51) 78. 62 Ibid, 80. 63 See generally, A Gillespie ‘“Trust Me, It’s only for Me”: “Revenge Porn” and the Criminal Law’ [2015] Criminal Law Review 11, 866. 64 Section 35(3) Criminal Justice and Courts Act (2015). 65 Ibid, section 35(5). 66 Marina Marshall v. Lenisha Augustine DOMHCV 2001/0319. 67 Section 33(1)(b) Criminal Justice and Courts Act (2015). 68 Section 2(1) Abusive Behaviour and Sexual Harm (Scotland) Act. 69 Ibid, section 1(7). 70 Ibid, section 3(1)(b). 71 Ibid, section 3(2). 72 D Reece-Greenhalgh ‘Revenge Porn: Widening the Net?’ Criminal Law and Justice Weekly, 4 July 2016. 73 Ibid. 74 Hansard (16 November 2016) Volume 776, Speech by Lord Marks, available at https://hansard.parliament.uk/lords/2016-11-16/debates/DE488DE7-5743-45D2-9EB1-6C8AEEF6908E/PolicingAndCrimeBill. See, in particular, comments by Baroness Williams and Lord Pannick. 75 List of cases with brief descriptions can be found on the CPS website: http://www.cps.gov.uk/news/latest_news/prosecutors_being_advised_to_learn_from_revenge_porn_cases/ 76 (Barkingside Magistrates Court) 7 July 2015. 77 (St Albans Magistrates’ Court) 18 September 2015. 78 (Kidderminster Magistrates’ Court) 13 August 2015. 79 (Croydon Magistrates’ Court) 24 September 2015. 80 (Stevenage Magistrates’ Court) 1 September 2015. 81 (Ipswich Magistrates’ Court) 8 November 2016. 82 (Reading Magistrates’ Court) 16 May 2015. 83 (Bristol Magistrates Court) 13 August 2015. 84 (Woodspring Magistrates Court) 30 July 2015. 85 (Bolton Crown Court) 30 May 2016. 86 I Proctor ‘Man Who Posted Revenge Porn on Facebook and Whatsapp Wins Cut to Sentence’ The Bolton News, 6 June 2016, available at http://www.theboltonnews.co.uk/news/bolton/14539021.Man_who_posted_revenge_porn_on_Facebook_ and_Whatsapp_wins_cut_to_sentence/ 87 See also R v. Clayton Kennedy (Cardiff Magistrates Court) 6 July 2015 (the defendant was sentenced to a 12-month Community Order, fined £110 and ordered to pay court costs of £295 and given an indefinite restraining order for posting intimate pictures of a woman onto Facebook, the victim was not aware the photo had even been taken, causing further distress); R v. Paul Marquis (Teesside Magistrates Court) 30 June 2015 (the defendant was sentenced to an 18-week suspended sentence, received a tagged curfew and ordered to pay costs and compensation after he sent an intimate image of a woman to her friend); R v. Jamie Law (Uxbridge Magistrates Court) 2 July 2016 (the defendant was convicted and was sentenced to 12 weeks imprisonment and a restraining order was granted for 3 years where he sent pictures of a woman to her brother); R v. William Nelson (Croydon Magistrates’ Court) 24 September 2015 (the defendant was sentenced to 2 months imprisonment suspended for 18 months, in addition to a restraining order was also put in place along with 100 hours unpaid work and costs, where he set up a fake Facebook account and posted approximately 30 intimate photographs of the woman. He then sent friend requests to her friends and family from the fake account). 88 Hansard (16 November 2016) Volume 776, Column 1437. Speech by Lord Marks, available at https://hansard.parliament.uk/lords/2016-11-16/debates/DE488DE7-5743-45D2-9EB1-6C8AEEF6908E/PolicingAndCrimeBill 89 These laws can be viewed at the Cyber Rights Initiative online database, available at https://www.cybercivilrights.org/revenge-porn-laws/ 90 §161.005 Oregon Revised Statute. 91 §76-5b-203, Utah Code. 92 §647(j)(4). 93 Title 16, ch. 11, Art. 3, Part 1, 16-11-90. 94 §21.16. 95 (Oregon Circuit Court) 1 December 2016. 96 Case No. 2:14-cv-02100 (Arizona District Court). 97 ML Jones Ctrl + Z: The Right to Be Forgotten (New York University Press 2016) 71. 98 M Wasser ‘AZ Revenge Porn Law Not to Be Enforced, Says Federal Judge’ Phoenix New Times, 13 July 2015, available at http://www.phoenixnewtimes.com/news/azrevengepornlawnottobeenforcedsaysfederaljudge7486054 99 Docket No. 1144-12-15Bncr. 100 Ibid, 3. 101 Ibid, 5. 102 See generally for critique on US legislation and associated case law, C Calvert ‘Revenge Porn and Freedom of Expression: Legislative Pushback to an Online Weapon of Emotional and Reputational Destruction’ [2013] Fordham Intellectual Property Media and Entertainment Law Journal 24, 673. 103 JC Rodriguez ‘Israel Criminalizes “Revenge Porn” in New Bill’ Law360, 7 January 2015, available at https://www.law360.com/articles/499212/israel-criminalizes-revenge-porn-in-new-bill 104 M Bohlander German Criminal Code (Federal Ministry of Justice, 2010) 98, available at https://ec.europa.eu/anti-trafficking/sites/antitrafficking/files/criminal_code_germany_en_1.pdf 105 S Matsui ‘The Criminalization of Revenge Porn in Japan’ [2015] Washington International Law Journal 24, 289. 106 SVG Cybercrimes Act can be accessed here: http://www.assembly.gov.vc/assembly/images/stories/cybercrime%20bill%202016.pdf 107 Z Franklin ‘Justice for Revenge Porn Victims: Legal Theories to Overcome Claims of Civil Immunity by Operators of Revenge Porn Websites’ [2014] California Law Review 102, 1303. 108 CV 2014-01949, Unrep. Jud. [TT]. © The Author(s) 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Statute Law Review Oxford University Press

Legislative Approaches to Combating ‘Revenge Porn’: A Multijurisdictional Perspective

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Abstract

Abstract This article aims to provide a nuanced articulation of the quickly evolving and largely converging legislative approaches to combatting the phenomenon colloquially referred to as ‘revenge porn’ from a multijurisdictional perspective. Through comparative doctrinal analyses, this article argues that while there has been increased legislative activity aimed at curtailing this image-based scourge of the 21st century, particularly in the United Kingdom, Australia, Canada and New Zealand, a number of outstanding theoretical and operational challenges and complexities nonetheless remain, which necessarily require further research and analysis, given the multifaceted nature of the phenomenon. The article concludes by exploring how recent developments in more developed jurisdictions can inform the reform of existing laws in lesser developed jurisdictions, such as the Commonwealth Caribbean. INTRODUCTION The phenomenon colloquially referred to as ‘revenge porn’ is a pernicious affront to its victims’ dignity and sexual autonomy, and, given that its primary victims are women, it can be aptly described as ‘cyber misogyny’.1 Perpetrators of this rapidly evolving phenomenon cowardly hide behind the keypad, mouse and screen only to disclose the most intimate of images, usually of their former partners, on various online platforms, in breach of their moral, ethical and legal obligation of confidence. In this context, ‘revenge porn’, more than anything else, is about coercion, control, and a malevolent desire to invade the personal space of victims in a manner that almost invariably leads to distress, humiliation, embarrassment, and even suicide. Notwithstanding the now axiomatic recognition that this form of ‘non-consensual pornography’ is on the increase across various jurisdictions, including the Commonwealth Caribbean, existing laws have been slow to keep apace with the evolving modalities of the phenomenon, to the extent that some perpetrators now act with virtual impunity in light of the lacunae in the existing legal framework. To the extent that the phenomenon of ‘revenge porn’ has not been thoroughly addressed in the existing literature from a multijurisdictional perspective, this article intends to provide a nuanced articulation of existing legislative approaches to combating revenge porn across various jurisdictions. Through this largely comparative doctrinal analysis, the article seeks to highlight some of the major challenges, complexities, and theoretical debates in this area, thus informing possibilities for future research and reform in this relatively new area of law. The Contested Meaning of ‘Revenge Porn’ For a long time, the unauthorized disclosure of intimate images has been colloquially referred to as ‘revenge porn’. In recent times, however, a wave of criticisms have been directed at the use of this ‘anachronistic’ concept, with leading scholars in the field arguing for the adoption of more apt terminological references, including ‘non-consensual pornography’2 and ‘image-based sexual abuse’,3 among others. The central argument advanced by these scholars has been that the term ‘revenge porn’ is both too narrow and misleading.4 More specifically, scholars argue that the traditional reference to ‘revenge porn’ does not take account of the fact that intimate images may not only be distributed as a result of a relationship coming to an end, but also in circumstances where a victim’s computer has been hacked and their images have been disclosed to the public without consent.5 Even further, it has been argued that the notion of ‘revenge’ somewhat suggests that the perpetrator’s vengeful act can in some ways be justified as it is a response to something wrong which the victim has done. The truth, however, is that the phenomenon, in most cases, involves a malevolent response to victims exercising their autonomy to move on from or out of a relationship that might not be in their best interest.6 As such, the ‘revenge’ exacted cannot, from any moral standpoint, ever be justified. Yet, still, other scholars contend that language matters and that, in this regard, it is vital to frame the phenomenon using clear, non-emotive terms that are focused on behaviour and not motivations or intentions. In any event, they argue, ‘revenge’ is not always the only motive behind the disclosure of intimate images; in many instances, perpetrators seek financial gain or notoriety or simply entertainment when disclosing the intimate images of victims without their consent.7 Moreover, the colloquial concept, it is argued, may encourage victim blaming, as it (in)advertently categorizes the victims’ actions as ‘pornography’ when, in reality, it is anything but. In short, the term ‘revenge porn’ reinforces the view that victims are somehow responsible for the misuse of their intimate images because they supposedly consented to the creation of these images in the first place. The challenge with this approach, however, is that it misrepresents victims’ sexual autonomy and mischaracterizes consent when given in the context of a relationship built on confidence, with consent to the subsequent disclosure of said images to third parties.8 This has serious adverse implications for victims, and, in particular, the way in which these victims are treated by the law, law enforcement officials, victim support personnel, and the public at large. Given the myriad objections associated with the term ‘revenge porn’, this article will adopt the more nuanced terminological reference crafted by Professors McGlynn and Rackley, ‘image-based sexual abuse.’9 Impact of Image-Based Sexual Abuse Victims of revenge porn are impacted in numerous adverse ways.10 To date, academic research and personal stories have made it unequivocally clear that image-based sexual abuse exposes victims to feelings of shame, humiliation, personal violation, and powerlessness.11 In addition, the phenomenon exposes victims to fear and apprehension about their personal safety,12 as they have a sense of being watched or constantly ‘under surveillance’.13 Numerous victims have also experienced hypervigilance online by, for example, compulsively checking websites to see if more images have been uploaded, and even more have been approached by strangers and propositioned for sexual activities.14 Many experience disruptions to their education or employment; their reputation is typically irreparably damaged; and their current or future intimate relationships with spouses, family, and friends, as well as future employment prospects, are adversely affected.15 Victims experience social withdrawal; body shame; trust issues; anxiety, sleeplessness, and nightmares; and in extreme cases, even suicidal ideation and/or attempts at suicide.16 In short, the humiliation, distress, embarrassment, and shame brought about by the unauthorized disclosure of intimate images is vast, and accordingly cannot be underestimated.17 The Profile of Image-Based Sexual Abuse While exact figures as to the true extent of image-based sexual abuse are currently unavailable, the Economist estimates that globally, there are at least 3000 pornography websites operating with a revenge purpose. This is unsurprising, however, given that across various jurisdictions,18 research not only points to the existence of instances of image-based sexual abuse in which individuals post on Facebook and Whatsapp,19 but, quite worryingly, a steady increase in reported incidents in recent years in which website operators profit from hosting the intimate images of victims.20 In the Australian context, a 2015 survey by the Royal Melbourne Institute of Technology (RMIT) reported that 1 in 10 Australians have had a nude or semi-nude image of them distributed online or sent onto others without their permission.21 Similarly, in the United Kingdom, more than 200 people have been prosecuted since the England and Wales’ unauthorized disclosure of intimate images statute came into force in April 2015,22 which represents only the tip of the iceberg in relation to the overall number of persons who have actually been threatened with or have had their intimate images disclosed without their consent.23 In the United States, the Data and Research Institute has reported that 1 in 25 (4 per cent) Americans has been a victim of threats or posts of nearly nude or nude images without their permission.24 The report goes further to estimate that 1 in 10 young women have been threatened with the possibility of public posting of their intimate images, and that young people ages 15–29 are the age group most likely to report being threatened with the potential sharing of nude or nearly nude images, with 1 in 14 (7 per cent) internet users under the age of 30 experiencing this compared with 2 per cent of adults ages 30 and older.25 Although current figures are not exacting, it has been reported that many victims of unauthorized disclosure of intimate images (43 per cent) have had an account or computer hacked and their image posted online.26 More generally, the report points out that LGB internet users are far more likely than those who identify as heterosexual to have experienced threats of or actual unauthorized disclosure of intimate images. In fact, 15 per cent of internet users who identify as lesbian, gay, or bisexual (LGB) noted that someone has threatened to share a nude or nearly nude photo or video of them without their permission, a far higher rate than among heterosexual internet users (2 per cent).27 The problem of the unauthorized disclosure of intimate images is not unique to these jurisdictions, however; other countries, such as Japan have estimated that the number of cases reported to police more than tripled, to 27,334, between 2008 and 2012.28 In the same vein, an increasing number of victims in the Canada,29 New Zealand,30 and, more recently, the Caribbean31 have reportedly been the subject of the unauthorized disclosure of their intimate images. These startling figures undoubtedly suggest that the unauthorized disclosure of intimate images is, indeed, a global concern, which, because of its quickly evolving nature, must necessarily be appropriately addressed. LEGISLATIVE APPROACHES TO ADDRESSING IMAGE-BASED SEXUAL ABUSE For a number of years, there was a relative dearth of legislation specifically targeting the phenomenon of revenge porn.32 Against this backdrop, across various jurisdictions, prosecutors sought to rely on various species of ad hoc criminal legislation to prosecute perpetrators of the offence, albeit with limited success, as such legislation were not specifically designed at the outset to target this relatively new phenomenon.33 For example, in Police v. Ravshan Usmanov,34 a New South Wales 20-year-old man was sentenced to six months imprisonment for the offence of publishing an indecent article, contrary to section 578C of the Crimes Act 1900 (NSW), after he uploaded naked images of his ex-girlfriend to Facebook, while in New Zealand in Police v. Joshua Ashby,35 the defendant was convicted and sentenced to four months imprisonment for distributing an ‘indecent model or object’ to the public, contrary to section 124(1)[a] of the Crimes Act 1961, after he logged onto his ex-girlfriend’s Facebook account, posted a nude picture of her, unlocked her privacy settings (thus making the image available to the public for a period of 12 hours until the account was shut down by the police and Facebook) and changed her password. Though encouraging, these cases make clear, as intimated by Judge Becroft in Police v. Joshua Ashby, that non-specific image-based sexual abuse legislation requires a tremendous degree of judicial manoeuvring36 in order to adapt old print laws to cover the challenges of the internet age so as to deal with what he described as the ‘incalculable harm to someone’s reputation’.37 The same argument about the need for judicial manoeuvring to effectively treat with the evolving challenge of image-based sexual abuse can be made in relation to the laws previously utilized in the United Kingdom to treat with the phenomenon; that is, the Malicious Communications Act 1988 which makes it an offence to send electronic communications which are indecent, grossly offensive, threatening, or false, provided there is an intention to cause distress or anxiety to the recipient; the Communications Act 2003 which makes it an offence to send or cause to be sent through a ‘public electronic communications network’ a message that is ‘grossly offensive’ or of an ‘indecent, obscene or menacing character’; the Harassment Act 1997 which treats as an offence a course of harassing conduct directed towards an individual; the Protection of Children Act 1978 which treats with situations where the intimate images may have been taken and disclosed when the victim was under 18; and the Sexual Offences Act 2003 which applies where intimate images are used to coerce victims into further sexual activity.38 The challenge of using old laws which were not specifically designed to combat image-based sexual abuse on an ad hoc basis to deal with the phenomenon is also problematic in the Commonwealth Caribbean, where there is an enduring lack of certainty as to whether the provisions of relevant Cybercrimes legislation, such as section 9(1) of the recently amended Jamaica Cybercrimes Act, 2015, sufficiently covers the phenomenon. Under this Act, a person commits an offence and is liable to a term of imprisonment not exceeding 4 years (on summary conviction) or 10 years (on conviction on indictment), respectively, if he - (a) uses a computer to send to another person any data (presumably including an image) that is obscene, constitutes a threat, or is menacing in nature; and (b) intends to cause, or is reckless as to whether the sending of the data causes, annoyance, inconvenience, distress, or anxiety, to that person or any other person. Given the now axiomatic uncertainties and challenges surrounding the use of non-specific image-based sexual abuse offences to prosecute the phenomenon, a number of jurisdictions have gone ahead to enact specific legislation aimed at more effectively combatting the unauthorized disclosure of intimate images. Several arguments have been advanced in favour of such legislation. First, legislation in this area would send a strong message that this type of conduct is unacceptable and serve to deter potential perpetrators from offending.39 Second, legislation in this area would fill the gap within the existing law in various jurisdictions, and effectively serve a symbolic and educative function for society.40 In other words, by providing a tailored image-based sexual abuse offence, this behaviour would be appropriately identified to the public and would clearly highlight and reinforce the ‘wrongfulness’ of image-based sexual abuse.41 Indeed, if people become aware that they may be committing an offence by sharing intimate images, they might become a little bit more discretionary about what they share and in what circumstances.42 Finally, enacting specific legislation may also appropriately address the fact that there is often an international element in the disclosure of intimate images. States may, in this regard, rely on mutual legal assistance if criminal prosecutions are brought against perpetrators operating across international boundaries. Australia Although legislative activity aimed at combating image-based sexual abuse is at an embryonic stage in Australia, several steps have quite commendably been taken to date towards addressing the phenomenon.43 At the Commonwealth level, the Criminal Code Amendment (Private Sexual Material) Bill 2015, which targets individuals who share,44 or threaten to share,45 private sexual images or film recordings of others without consent and with the intention of, or where there is the risk of, causing that person harm or distress, as well as those who operate image-based sexual abuse websites,46 has received its second reading, and is likely to become operational in the not too distant future. The Bill, which prescribes a sentence of up to three years imprisonment, goes further than section 33 of the England and Wales Criminal Justice and Courts Act (2015)47 in that it not only criminalizes instances where intimate images are recklessly (as opposed only to intentionally) disclosed without authorization, as well as the threat to disclose intimate images. The Bill also goes further than the England and Wales Act by targeting persons who possess, control, produce, supply, or obtain private sexual material for a commercial purpose or for the purpose of obtaining a benefit, which might presumably curtail the activities of specialized ‘image-based sexual abuse’ website operators. The maximum penalty prescribed by the Australian Act for this latter offence is five years imprisonment. It is important to note that, to date, at the state level, only two Australian states have specifically criminalized image-based sexual abuse through legislative enactments. The first is South Australia, which in 2013 enacted section 26C(1) of the Summary Offences (Filming Offences) Amendment Act 2013 (SA), thereby making it an offence to distribute ‘invasive images’ of a person without their consent.48 The concept of an ‘invasive image’ means ‘a moving or still image of a person (a) engaged in a private act; or (b) in a state of undress such that the person’s bare genital or anal region is visible, but does not include an image of a person under, or apparently under, the age of 16 years or an image of a person who is in a public place’.49 Interestingly, unlike the proposed Commonwealth legislation, this Act does not appear to require that an intent to cause distress, which, while making it easier to prosecute the offense, raises questions as to whether such an approach is demonstrably justified, that is, a proportionate approach, having regard to the countervailing right to freedom of expression.50 The same questions arise in relation to section 41DA(1) of the Victoria Summary Offences Act 1966 (Vic), which was amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (Vic), and which provides for the imposition of two years imprisonment where: (a) a person (A) intentionally distributes the intimate image of another person (B) to a person other than B; and (b) the distribution of the image is contrary to community standards of acceptable conduct. It is to be noted that this notion of ‘community standards of acceptable conduct’ is not defined in the Act. However, it can be argued that, having regard to the English offence which requires that the image or film be private, which is defined as something that is not of a kind ordinarily seen in public, a similar reading of the ‘community standards’ requirement may be appropriate.51 That said, unlike the South Australia Act, the Victoria Act specifically prohibits the making of threats (whether implicitly or explicitly or by conduct) concerning the distribution of intimate images if the distribution of the image would be contrary to community standards of acceptable conduct, and the perpetrator intends that the victim will believe, or believes that the victim will probably believe, that he will carry out the threat, pursuant to section 41DB(1). Notwithstanding the noble recognition that threats to distribute intimate images can be used to coerce victims to remain in abusive relationships, it should be noted that an offence against section 41DB(1) carries a maximum penalty of one year imprisonment, which is a third of the penalty proposed by the Criminal Code Amendment (Private Sexual Material) Bill 2015. Canada Canada, like England and Wales, has forged ahead with creating a specific offense that appropriately captures the unauthorized disclosure of intimate images. The Protecting Canadians from Online Crime Act 2014, which entered into force in March 2015, inserts an offence into section 162.1 of the Canadian Criminal Code, so that any person who ‘knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image’ of another person knowing the person depicted in the image did not consent, or being reckless as to this, is guilty of an offence.52 Unlike the England and Wales Act, the amended Canadian Criminal Code does not only prohibit intentional disclosure, but also reckless disclosure. That said, the Act includes a defence, whereby no offence will be committed if the ‘conduct that forms the subject-matter of the charge serves the public good and does not extend beyond what serves the public good’.53 For the purposes of this defence, it is a question of law whether the conduct serves the public good and whether there is evidence of this, but it is a question of fact whether the conduct does or does not extend beyond what serves the public good and the motives of the accused are irrelevant in this assessment. It is important to note that the Canadian offence includes a more substantial maximum penalty of five years imprisonment compared to the maximum two years imprisonment54 under the Victorian and English offences. The Scottish offence, discussed below in respect of the Abusive Behaviour and Sexual Harm (Scotland) Act, also carries a maximum penalty of five years imprisonment.55 Moreover, it is also worth noting that the Canadian Act, quite progressively, also makes complementary amendments to authorize the removal of such images from the internet and the recovery of expenses incurred to obtain the removal of such images; the forfeiture of property used in the commission of the offence; a recognizance order to be issued to prevent the distribution of such images; and the restriction of the use of a computer or the internet by a convicted offender. New Zealand New Zealand, in keeping with the global legislative trend against image-based sexual abuse, enacted the Harmful Digital Communications Act 2015 (NZ) (the HDCA Act) in 2015. Section 22 of the Act creates the offence of ‘causing harm by posting digital communication’, which is established where: (a) the person posts a digital communication with the intention that it cause harm to a victim; and (b) posting the communication would cause harm to an ordinary reasonable person in the position of the victim; and (c) posting the communication causes harm to the victim. In determining whether a post would cause harm, the court may take into account any factors it considers relevant, including: (a) the extremity of the language used; (b) the age and characteristics of the victim; (c) whether the digital communication was anonymous; (d) whether the digital communication was repeated; (e) the extent of circulation of the digital communication; (f) whether the digital communication is true or false; and (g) the context in which the digital communication appeared.56 A person who commits an offence against this section is liable on conviction to (a) in the case of a natural person, imprisonment for a term not exceeding two years or a fine not exceeding $50,000 and (b) in the case of a body corporate, a fine not exceeding $200,000.57 Interestingly, unlike the statutes previously discussed, the New Zealand Act defines ‘harm’ as ‘serious emotional distress’,58 and defines ‘communication’ to include the sending or posting of an intimate visual recording (including still pictures) of another individual or an attempt to do so.59 Online content hosts can be held liable in respect of specific content of a digital communication posted by a person and hosted by the online content host. Despite the fact that since its enactment section 22 has been relied upon to charge over 12 persons for image-based sexual abuse, some of whom have been convicted and sentenced to periods of imprisonment,60 it can be argued that, unlike the Scottish legislation, the New Zealand Act does not appear to treat with instances where a person recklessly posts an intimate image. More generally, the Act has been criticized as for creating an ‘overbroad and vague’ offence,61 particularly the definition of harm which requires ‘serious’ and not mere distress, and the discretionary factors which courts can take into account when assessing whether harm is caused. For these, and other reasons, the offence has been described as a ‘threat to online free speech’.62 The United Kingdom Quite interestingly, there is some degree of divergence in how the respective legislatures have sought to fashion the criminal offence of image-based sexual abuse across the United Kingdom.63 Under section 33 of the England and Wales Criminal Justice and Courts Act (2015) as well as section 51 of the Justice Act (Northern Ireland) 2016, an offence is committed when a person (D) discloses to a third party: (a) a private sexual photograph or film (b) without the consent of the person depicted (V), and (c) with the intention of causing V distress. The concept of disclosure is broadly defined so as to cover both electronic distribution as well as physically showing an intimate image or video to a third party. An image or video is ‘sexual’ if it shows all or part of an individual’s exposed genitals or pubic area; or it shows something that a reasonable person would consider to be sexual because of its nature, or its content, taken as a whole, is such that a reasonable person would consider it to be sexual.64 It would appear, in this connection, that the offence does not cover conduct such as kissing. More generally, it is important to note that the Act specifies that images or videos that were not originally sexual in nature, but which have been edited in some way so that they become sexual, will not be ‘sexual’ within the Act,65 thereby excluding persons from liability if the images are ‘photoshopped’ images, for example; that is, where the person superimposes an image of the victim’s head onto an image of a person engaged in a sexual act, as transpired in Marina Marshall v. Lenisha Augustine.66 It would appear, however, that disclosing a private and sexual image or video that has been altered, for example by disguising the subject’s face, will still be an offence. The offence requires that the prosecution prove that the defendant specifically intended to cause the victim distress,67 and contrary to the approach in Victoria, Canada and Scotland, reckless disclosure will not be sufficient. In other words, an intention to cause distress cannot be implied in England and Wales merely because distress was a natural and probable consequence of disclosure. In contrast to the arguably narrow approach countenanced in England and Wales to the unauthorized disclosure of intimate images, Scotland, through its recently enacted Abusive Behaviour and Sexual Harm (Scotland) Act 2016, introduced the offence of ‘disclosing or threatening to disclose an intimate photograph or film’. A person commits this offence if they disclose or threaten to disclose a photograph or film which shows, or appears to show, another person in an intimate situation and the person intends to cause, or is reckless as to whether the other person will be caused, fear, alarm, or distress.68 Although this offence is similar to the offence introduced in England and Wales, it has a number of features which make it a more comprehensive response to the harm caused by the non-consensual distribution of intimate images. At the outset, the Scottish offence applies not only to circumstances where the perpetrator intends to cause the victim fear, alarm or distress, but also where the perpetrator is reckless as to this. The mental element also applies to intention to cause or being reckless as to whether the victim will be caused ‘fear’ and ‘alarm’ as well as ‘distress’ and so is wider than the English offence which only applies to intention to cause ‘distress’.69 In addition, the Scottish offence also applies to threats to disclose intimate photographs and films, which does not apply in England and Wales. Moreover, the definitions of ‘intimate situation’, ‘film’ and ‘photograph’ in the Scottish Act include a wider range of intimate images than the equivalent definitions in the English legislation. For example, the definition of ‘intimate situation’ applies not only to images where the ‘genitals, buttocks or breasts’ are exposed, but also where they are ‘covered only with underwear’.70 The Scottish offence is also defined to include images which are altered in any way,71 such as where a person's face is superimposed on an intimate image, unlike the more limited approach that is countenanced in England and Wales, where section 35(5)(b) provides that a photograph is not private and sexual if ‘it is only private or sexual by virtue of the alteration’. In view of the above concerns, a number of amendments were proposed72 to buttress the Criminal Justice and Courts Act (CJCA), which were tagged onto section 61 of the Police and Crime Bill, including: creating the offence of threatening to disclose private material; expanding the harm caused to the victim to include ‘alarm’ as well as ‘fear’ or distress; stipulating that an offence under section 33 can be committed not only intentionally, but also where the person in so disclosing the intimate image is reckless as to the causing of fear/alarm/distress; expanding the definition of ‘sexual’ to ensure that the disclosure of pornographic photoshopped images [...] are covered by the law; and adding further offence aimed at criminalizing those who ‘knowingly promote, solicit or profit’ from the disclosure of private material, where there is a reasonable belief that the disclosure has been done without consent. These revisions to the CJCA, which would have directly mirrored the Scottish model,73 were, however, rejected on 16 November 2016.74 In the interim, notwithstanding the areas of divergences averred to above, a number of cases have been decided upon since the enactment of the offence in 2015 in England and Wales, which provide some interesting perspectives as to the evolving nature of the phenomenon in these jurisdictions.75 For example, in R v. Sam Colley,76 the defendant was sentenced to 12 weeks imprisonment suspended for 18 months after he pleaded guilty to the offence of image-based sexual abuse in circumstances where he sent an intimate picture of a woman to members of her family via Facebook and threatened to post further pictures online. Similarly, in R v. Simon Humphrey,77 the defendant was sentenced to 4 months imprisonment suspended for 18 months for setting the victim’s image as his ‘profile picture’ on Facebook intending to humiliate the victim, in circumstances where the victim’s child first noticed the picture being used. In R v. Alex Till,78 the defendant was sentenced to a 12-month community order, handed a fine and ordered to pay costs in circumstances where he sent the victim a Facebook message from a false account using the private sexual photograph of the victim as his profile picture. Further, in R v. William Nelson,79 the defendant was sentenced to 2 months imprisonment suspended for 18 months where he set up a fake Facebook account and posted approximately 30 intimate photographs of the victim, and then sent friend requests to her friends and family from the fake account. Interestingly, women have also to date been convicted under the statute. For example, in R v. Paige Mitchell,80 the defendant was sentenced to 6 weeks imprisonment suspended for 18 months, rehabilitation activity requirement for 50 days and ordered to pay costs where she admitted to posting explicit photos of the victim on to her Facebook profile after an argument. Mitchell went on to caption the pictures with humiliating insults and even referenced the assault. Similarly, in R v. Kaylea Reid,81 the defendant, who had ongoing flirtatious conversations with her employer, was convicted for posting pictures of her naked boss on his wife’s business Facebook page. Interestingly, unlike other offenders, she was spared jail time, and only given a conditional discharge for six months and ordered to pay a victim surcharge fee of £20, because of what the Magistrates described as the victim’s ‘provocative behaviour’. This case is problematic because it reinforces victim blaming, sets a patently dangerous precedent, and wrongfully conflates consent given in the context of flirtatious conversations with consent to disclose the intimate pictures to the public without authorization. That said, it is nonetheless commendable that the Courts have also penalized those who make use of other platforms to commit image-based sexual abuse, apart from Facebook. For example, in R v. Jason Asagba,82 the defendant was prosecuted after he sent the intimate pictures of the victim to the victim’s family via text and hacked into the victim’s Facebook account and shared an intimate image on her timeline. Similarly, in R v. John Duffin,83 the defendant was convicted for saving an intimate picture of a woman and setting it as his ‘Whatsapp’ profile picture, which allowed all of his contacts to view it. Interestingly, also, distributing images on offline platforms has also been met with the robust disapproval of the courts. For example, in R v. Luke Brimson,84 the defendant was sentenced to 24 weeks in prison suspended for 18 months, given a 2-year Restraining Order and made to pay costs, in circumstances where he distributed intimate pictures of a woman inside and outside of a supermarket. One interesting question which has arisen in recent months which merits special attention relates to whether the sentences imposed by Magistrates in image-based sexual abuse cases can be aptly described as having a deterrent effect or overly excessive. This issue arose in David Derbyshire v. R,85 where a man who admitted posting the intimate images of his ex-girlfriend on Facebook and Whatsapp successfully appealed against a sentence of 17 weeks imprisonment, notwithstanding the fact that, as the Magistrate had earlier found, the ‘offence was so serious because it was a massive breach of trust and there were repeated attempts to keep it on Facebook and Whatsapp’. On appeal, the Crown Court substituted the sentence with an 8-week jail term, suspended for 24 months, with a rehabilitation activity requirement of up to 15 days.86 In sum, what these cases87 suggest is that some attempt to curtail the evolving modus operandi of perpetrators of image-based sexual abuse through the imposition of appropriately dissuasive sanctions. That said, it must be borne in mind, as pointed out by Lord Marks in the November 2016 debates, out of 1160 reported instances of image-based sexual abuse between April and December 2015, no action was taken in no less than 61 per cent of cases. In short, it is particularly concerning that many cases were not prosecuted because of insufficient evidence or because the victim did not proceed with the complaint, though this was is not an indication that the incidents did not occur.88 The United States At present, the United States does not have in place a federal offence that prohibits image-based sexual abuse. In mid-2016, however, Democratic Congresswoman Jackie Speier prepared a ‘discussion draft’ of the Intimate Privacy Protection Bill 2015, which is now before the House of Representatives. The Bill, if successfully passed, aims to amend chapter 88 of title 18 of the United States Code, by prohibiting, under §1802, the knowing use of electronic communication services or any other facility to: […] distribute a visual depiction of a person who is identifiable from the image itself or information displayed in connection with the image and who is engaging in sexually explicit conduct, or of the naked genitals or post-pubescent female nipple of the person, with reckless disregard for the person’s lack of consent to the distribution […] The penalty prescribed by the Bill is five years imprisonment, which is consistent with the approach countenanced by the Scottish legislation. On a state level, an estimated 34 States have thus far prohibited the unauthorized disclosure of intimate images through legislation.89 In general, the relevant statutes in the respective States, including Oregon90 and Utah,91 criminalize such disclosure where there is an intention to cause distress. Absent, however, from most states’ statutes are references to recklessness in respect of the distress caused, with the exception of the California Penal Code.92 That said, the penalties prescribed range from between one year and three years, such as the Georgia Code.93 In some instances, legislation, such as the Texas Penal Code,94 also prohibits threats to disclose intimate images, with appropriate defences included where the disclosure is for the purposes investigating crime or in the public interest. Since the enactment of these statutes, a few cases have been decided upon which have sought to interpret and apply the provisions of said statutes, though not without some controversy. In a recent decision—State v. Benjamin Barber95—the Court sentenced the defendant to six months in jail, with five years of probation, in circumstances where he posted sexually explicit videos of himself and his ex-girlfriend to various pornographic websites, contrary to Oregon’s anti-image-based sexual abuse statute. Interestingly, the defendant, in his defence, maintained that he was actually the victim in this case since his posting of the videos was as a result of the victim threatening to use said videos against him as blackmail. The Court, however, rejected the defendant’s defence as being unsubstantiated. In a controversial case recently decided upon, Antigone Books v. Brnovich,96 Arizona’s image-based sexual abuse law prohibiting the unauthorized disclosure of nude images was struck down as being unconstitutional in light of its overbroad, vague, and overly restrictive impact on freedom of speech.97 In this case, a group of Arizona booksellers, publishing companies, news articles, librarians, and photographers (including the Voice Media Group, New Times’ parent company) sued the state Attorney General’s Office, arguing that the law went beyond prohibiting image-based sexual abuse to cover the publication of certain educational materials about breastfeeding, or newsworthy photographs like those taken at the Abu Ghraib prison, among others. In this context, the Court found that the law, in criminalizing the posting of a nude photo with no intent to harm the person depicted, was an unconstitutional infringement of the Claimants’ freedom of speech guaranteed under the First Amendment. In response, the Arizona Office of the Attorney General opted not enforce the statute as it felt that this would ‘certainly result in further litigation’.98 In another case—State of Vermont v. Rebekah Vanburen99—similar concerns were expressed regarding the uneasy relationship between recently enacted image-based sexual abuse legislation and the right to freedom of expression. In this case, the female complainant had taken photographs of herself that were nude or partially nude and sent them to the Facebook account of Anthony Coon, with whom she had a prior relationship. At the time she sent them, however, she was not still in a relationship with Mr. Coon, as Mr. Coon had by that time entered into a relationship with the defendant. The defendant managed to access Mr. Coon’s Facebook account, and posted the intimate photos of the complainant on a public Facebook page, in the process tagging the complainant in them. A number of people saw the photographs in this manner. The complainant learned of the posting and sought to have it taken down. The defendant admitted that she publicly disclosed the intimate images in order to exact revenge or to get back at the complainant for the prior relationship with Mr. Coon and for sending him these sexual photographs. She told complainant she did it and told her she was seeking to harm her reputation in her work; in fact, the defendant allegedly told officers she wondered if complainant had ‘learned her lesson’. Although 13 V.S.A. § 2606(b)(l) prohibits ‘knowingly disclos[ing] a visual image of an identifiable person who was nude or was engaged in a sexual conduct, without his or her consent, with the intent to harm, harass, intimidate, threaten, or coerce the person depicted, and the disclosure would cause a reasonable person to suffer harm’, the Court granted the defendant’s motion to dismiss the claim. The Court, in this connection, found that the statute is unconstitutional under the First Amendment to the United States Constitution in that it is an overbroad restraint on a protected form of speech or expression and not tailored to a compelling or important governmental purpose. While the court accepted that freedom of expression may be limited, the expression sought to be limited—in this case the disclosure of the intimate images—had to fall into one of the exceptions, which includes obscenity, defamation, fraud, incitement, or speech integral to criminal conduct. On reviewing the nature of image-based sexual abuse, the Court found that the phenomenon does not fall onto the ‘obscenity’ category. As such, the statute was subject to strict, rather than rational review, which is a higher threshold to establish its constitutionality. In arriving at its arguably conservative conclusion, the Court made it clear that: While there is argument that ‘revenge pornography’ should be considered obscene simply because of the intent it is used, there is no present authoritative law that would allow this court to take such a step in enlarging the area of unprotected speech under the First Amendment.100 After subjecting the relevant statute to ‘strict scrutiny’, the court found that even if it were to assume that the state met its burden of a compelling governmental interest, that is, its citizens privacy rights and perhaps reputational rights, it did not meet its burden of showing there are no less restrictive alternatives, such as civil penalties that would be as effective. The Court, in additionally, quite interestingly, also had concerns over the reality that the facts of this case were not a clear example of the typical image-based sexual abuse case described in many articles and mentioned in support of the statute. In other words, this was not a case of photographs sent or exchanged during a relationship and then used after the relationship ended, usually unpleasantly. Rather, it involved a situation in which the complainant sent the photographs to a person with whom she had a past relationship, but was not presently in a relationship with. On this point, the Court, quite indifferently, concluded that ‘the possible overbreadth of the statute is of concern’.101 It is submitted that this flawed and parochial understanding of the term ‘image-based sexual abuse’ is anachronistic in nature, and symptomatic of the wider problem of improperly construing the scope of the phenomenon.102 Other Jurisdictions Apart from the jurisdictions identified to above, a number of other jurisdictions from across the globe have taken proactive steps to criminalize image-based sexual abuse. Examples include (a) Israel which passed an amendment to its Prevention of Sexual Harassment Act aimed at criminalizing those who upload intimate photos or videos without the consent of their partners with five years in prison, and victims are eligible for up to 50,000 NIS without proof of damage, and higher compensation if damages are proven103; (b) Germany which amended section 201a of the Criminal Code to prohibit a person from unlawfully and knowingly making available to third parties an intimate picture that was created with or without the consent of another person located in a dwelling or room especially protected from view and thereby violating that person’s intimate privacy104; (c) Japan, pursuant to Article 3 of the Revenge Porn Prevention Act, criminalizes the provision of a private sexual image of another person without the person’s approval via a means of telecommunication to an unspecified number of or to many people, and allows Internet service providers to delete suspected image-based sexual abuse images without the uploader’s consent in specified circumstances105; and (d) Saint Vincent and the Grenadines, pursuant to section 13(3) of the Cybercrimes Act (2016), also criminalizes a person who, intentionally or recklessly, uses a computer system to disseminate an image that exposes the private affairs of another person, thereby subjecting that other person to public ridicule, contempt, hatred, or embarrassment.106 CONCLUSION The foregoing discussion attempted to briefly provide a multijurisdictional perspective on how the phenomenon colloquially referred to as ‘revenge porn’ has evolved over time, the profile of the phenomenon, its impact on its victims, and the challenges and complexities associated with existing legislative approaches to combating image-based sexual abuse. Among other things, this article argued that when the global legal landscape is surveyed, there is a great degree of convergence in some legislative approaches to image-based sexual abuse across multiple jurisdictions, but that there are, indeed, some glaring instances of divergence. Its central argument is that given the multifaceted nature of the phenomenon, legislation must be specifically adapted to with a number of outstanding issues, including the need to rectify the terminological issues associated with the concept ‘revenge porn’, as it can be argued that its narrow definition—‘the unauthorised distribution of intimate images upon the breakdown of a relationship’—has been outlived; ensuring that threats to disseminate intimate images—irrespective of whether or not those images exist—are criminalized; ensuring that legislation across the various states of Federal countries such as Australia and the United States adopts the same or similar approaches to the phenomenon so that such legislation can withstand challenges on the ground of being in breach of the countervailing right to freedom of expression107; ensuring that victims of image-based sexual abuse experience a consistently positive range of responses when reporting their situation to police, and eradicating victim blaming, especially among male victims; targeting websites on which non-consensually shared intimate images are posted, even if they are run overseas; ensuring that encryption technologies that can make it difficult to obtain evidentiary material, particularly from smart phones, are subverted in the interest of prosecuting the phenomenon; and providing appropriate resources to facilitate education and training so that all stakeholders, including the public, are on board in the fight against what some describe as ‘image-based sexual abuse’. In the interim, however, the argument can be made that although considerable progress has been made across multiple jurisdictions towards effectively eradicating image-based sexual abuse, a herculean task awaits countries such as Trinidad and Tobago, among other Commonwealth Caribbean countries, to introduce criminal sanctions to combat this modern scourge. Indeed, as Justice Seepersad warned in Therese Ho v. Lendl Simmons: The impact upon an individual’s privacy is tremendous and the absence of clear and cohesive legislation to protect our citizens’ privacy and to punish those who violate the rights of others, can cause us to descend into a bottomless pit of anarchy. [...] The time for legislative intervention is long overdue […] Given the rapid pace with which the face and fabric of the society has changed and cognizant of the infinite reach of social media, it cannot be denied that the privacy of the person is under attack and there is dire need for the enactment of statute to afford protection for citizen’s personal privacy.108 Footnotes 1 R Hill ‘Cyber-Misogyny: Should Revenge Porn Be Regulated in Scotland, and if so, How’ [2015] SCRIPTed 12, 117. 2 E Poole ‘Fighting Back against Non-Consensual Pornography’ [2015] USFL Rev 49, 181, 184. 3 C McGlynn and E Rackley ‘Not “Revenge Porn”, but Abuse: Let’s Call It Image-Based Sexual Abuse’ Inherently Human, 15 February 2016. 4 MA Franks Criminalizing Revenge Porn: Frequently Asked Questions (University of Miami School of Law, Working Article, 9 October 2013), available at https://articles.ssrn.com/sol3/articles.cfm?abstract_id=2337998 5 M Salter ‘Responding to Revenge Porn: Gender, Justice and Online Legal Impunity’, Article delivered at: Whose Justice? Conflicted Approaches to Crime and Conflict (University of Western Sydney, Sydney, 2013), available at http://s3.amazonaws.com/academia.edu.documents/31955440/MSalter_-_revenge_porn.pdf?AWSAccessKeyId=AKIAJ56TQJRTWSMTNPEA&Expires=1483505209&Signature=7iEFyZFDtb%2B4WvoXMLXowiirS7A%3D&response-content-disposition=inline%3B%20filename%3DResponding_to_revenge_porn_Gender_justic.pdf 6 S Bloom ‘No Vengeance for ‘Revenge Porn’ Victims: Unravelling Why This Latest Female-Centric, Intimate-Partner Offense Is Still Legal, and Why We Should Criminalize It’ [2016] Fordham Urban Law Journal 42, 234, 237. 7 MA Franks ‘Drafting an Effective “Revenge Porn” Law: A Guide for Legislators’ (Cyber Civil Rights, Initiative) 1. 8 R Hill ‘Cyber-Misogyny: Should ‘Revenge Porn’ Be Regulated in Scotland, and if so, How?’ [2015] SCRIPTed 12, 118, 123. 9 C McGlynn and E Rackley ‘Image-Based Sexual Abuse’ [2017] Oxford Journal of Legal Studies 2, doi: 10.1093/ojls/gqw033. 10 M Osterday ‘Protecting Minors from Themselves: Expanding Revenge Porn Laws to Protect the Most Vulnerable’ [2016] Indiana Law Review 45, 555, 559. 11 A Kitchen ‘The Need to Criminalize Revenge Porn: How a Law Protecting Victims Can Avoid Running Afoul of the First Amendment’ [2015] Chicago-Kent Law Review 90, 247, 265. 12 S Bates ‘“Stripped”: An Analysis of Revenge Porn Victims’ Lives after Victimization’ (Master’s Thesis, Simon Fraser University, 2015) 61. 13 Md Nabil ‘From Sex Tapes to Revenge Porn: Construction of a Genre Gender, Sexuality and Power in New Media’ (Master’s Thesis, Stockholm University, 2014) 42. 14 N Maalouf ‘Revenge Porn’ Columbia University Computer, Privacy and The Constitution Blog, 8 March 2015. 15 ‘Action Sheet on Revenge Porn’ McAllister Olivarius (2016), available at http://www.mcolaw.com/white-articles-research/action-sheet-on-revenge-porn/ 16 N Baker ‘Revenge Porn Suicide’ The Sun News Article, 15 September 2016, available at https://www.thesun.co.uk/news/1787316/tiziana-cantone-sex-tape-leak-leads-her-to-commit-suicide-after-she-suffered-barrage-of-online-abuse/ 17 S Bates ‘Revenge Porn and Mental Health: A Qualitative Analysis of the Mental Health Effects of Revenge Porn on Female Survivors’ [2017] Feminist Criminology 12, 22. 18 ‘Revenge Porn: Misery Merchants’ The Economist, 5 July 2014, available at http://www.economist.com/news/international/21606307-how-should-online-publication-explicit-images-without-their-subjects-consent-be 19 A Topping ‘Facebook Revenge Pornography Trial “Could Open Floodgates”’ The Guardian, 9 October 2016, available at https://www.theguardian.com/technology/2016/oct/09/facebook-revenge-pornography-case-could-open-floodgates 20 C Cusack Pornography and the Criminal Justice System (CRC Press Florida 2014) 175. 21 K Ryan ‘Online Abuse Affects 3 in 5 Australians: Study’ RMIT, 16 November 2015, available at http://www.rmit.edu.au/news/all-news/2015/november/online-abuse-affects-3-in-5-australians-study; Anastasia Powell and Nicola Henry, ‘Digital Harassment and Abuse of Adult Australians: A Summary Report’ RMIT (2014) 3 http://research.techandme.com.au/wp-content/uploads/REPORT_AustraliansExperiencesofDigitalHarassmentandAbuse.pdf 22 B Byrne ‘The UK Has Already Prosecuted 206 Cases of Revenge Porn’ Vocativ, 6 September 2016, available at http://www.vocativ.com/356609/the-uk-has-already-prosecuted-206-cases-of-revenge-porn/ 23 J Halliday ‘Revenge Porn: 175 Cases Reported to Police in Six Months’ The Guardian, 11 October 2015, available at https://www.theguardian.com/uk-news/2015/oct/11/revenge-porn-175-cases-reported-to-police-in-six-months 24 A Lenhart, M Ybarra and M Price-Feeney Non-Consensual Image Sharing: One in 25 Americans Has Been a Victim of ‘Revenge Porn’ (Data & Society and Center for Innovative Public Health Research, 13 December 2016) 3, available at https://datasociety.net/pubs/oh/Nonconsensual_Image_Sharing_2016.pdf 25 S Young New Report Shows that 4% of U.S. Internet Users Have Been a Victim of ‘Revenge Porn’ (Data & Society, 13 December 2016), available at https://datasociety.net/blog/2016/12/13/nonconsensual-image-sharing/ 26 Ibid. 27 S Petkar ‘Gay or Bisexual People Four Times More Likely to Be Victims of Revenge Porn’ Metro, 20 December 2016, available at http://metro.co.uk/2016/12/20/gay-or-bisexual-people-four-times-more-likely-to-be-victims-of-revenge-porn-6335974/#ixzz4UqrWhoa4 28 ‘Tougher Laws Advocated to Restrain “Revenge Porno” Posters’ Japan Today, 23 January 2014, available at https://www.japantoday.com/smartphone/view/kuchikomi/tougher-laws-advocated-to-restrain-revenge-porno-posters 29 N Goeteyn and É Gratton Ontario Court Recognizes Existence of New ‘Revenge Porn’ Privacy Tort (Borden Ladner Gervais, 28 January 2016), available at http://blg.com/en/News-And-Publications/publication_4395 30 R Kidd ‘Devastating Effects of Revenge Porn Highlighted’ New Zealand Herald, 20 April 2016, available at http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11625636 31 G Kowlessar ‘Cops: Revenge Porn Cases on the Rise’ Trinidad Guardian, 5 November 2016, available at http://www.guardian.co.tt/news/2016-11-05/cops-revenge-porn-cases-rise 32 J Beyens and E Lievens ‘A Legal Perspective on the Non-Consensual Dissemination of Sexual Images: Identifying Strengths and Weaknesses of Legislation in the US, UK and Belgium’ [2016] International Journal of Law, Crime and Justice 47, 31. 33 M Salter ‘Responding to Revenge Porn: Gender, Justice and Online Legal Impunity’, Article delivered at Whose Justice? Conflicted Approaches to Crime and Conflict (University of Western Sydney, Sydney, 27 September 2013). 34 [2011] NSWLC 40. 35 (2010) District Court of Wellington, New Zealand. 36 J Barrett and L Strongman ‘The Internet, the Law, and Privacy in New Zealand: Dignity with Liberty?’ [2012] International Journal of Communication 6, 136. 37 Ibid. 38 S Pegg ‘Wrong on “Revenge Porn”’ Law Society Gazette, 23 February 2015. 39 ‘Phenomenon colloquially referred to as “revenge porn”’ (Legal and Constitutional Affairs References Committee, February 2016). 40 Ibid. 41 Ibid. 42 DK Citron and MA Frank ‘Criminalising Revenge Porn’ [2014] Wake Forest Law 49, 345, 361. 43 For commentary, see generally, N Henry and A Powell ‘Sexual Violence in the Digital Age: The Scope and Limits of Criminal Law’ [2016] Social & Legal Studies 25, 397; N Henry and A Powell ‘Embodied Harms Gender, Shame, and Technology-Facilitated Sexual Violence’ [2015] Violence Against Women 21, 758; A Powell and N Henry ‘Technology-Facilitated Sexual Violence Victimization: Results from an Online Survey of Australian Adults’ [2016] Journal of Interpersonal Violence, doi: 10.1177/0886260516672055; D Plater ‘“Setting the Boundaries of Acceptable Behaviour”? South Australia’s Latest Legislative Response to Revenge Pornography’ [2016] UniSA Student Law Review 2, 1. 44 474.24E Criminal Code Amendment (Private Sexual Material) Bill 2015 – Using a carriage service for private sexual material: (1) A person commits an offence if (a) the person transmits, makes available, publishes, distributes, advertises or promotes material; and (b) the material is private sexual material; and (c) the person engages in the conduct mentioned in paragraph (a) without the consent of a subject of the material; and (d) the person knows of, or is reckless as to, the subject’s lack of 6 consent; and (e) either: (i) the conduct mentioned in paragraph (a) causes distress or harm to a subject of the material; or (ii) there is a risk that the conduct mentioned in paragraph (a) will cause distress or harm to a subject of the material; and (f) the person engages in the conduct mentioned in paragraph (a) 14 using a carriage service. Penalty: Imprisonment for three years. 45 Ibid, 474.24F Criminal Code Amendment (Private Sexual Material) Bill 2015 - Using a carriage service—making a threat about private sexual material. 46 Ibid, 474.24G Criminal Code Amendment (Private Sexual Material) Bill 2015 – Possessing, controlling, producing, supplying or obtaining private sexual material for use through a carriage service. 47 Section 33(1)(b) Criminal Justice and Courts Act (2015). 48 Section 26C Summary Offences (Filming Offences) Amendment Act 2013 (SA)—Distribution of invasive image (1) A person who distributes an invasive image of another person, knowing or having reason to believe that the other person— (a) does not consent to that particular distribution of the image; or (b) does not consent to that particular distribution of the image and does not consent to distribution of the image generally, is guilty of an offence. Maximum penalty: $10,000 or imprisonment for two years. 49 Ibid, section 26A. 50 J Humbach ‘How to Write a Constitutional “Revenge Porn” Law’ [2014] PACE Law Review 35, 215. 51 J Quirke et al. ‘Report Harmful Communications and Digital Safety’ (Law Reform Commission, 116–2016) 99. 52 Section 162.1 Protecting Canadians from Online Crime Act. 53 Ibid, section 162.1(3). 54 Ibid, section 162.1 (1)(a). 55 Section 2(7)(b) Abusive Behaviour and Sexual Harm (Scotland) Act (2016). 56 Section 22(2) Harmful Digital Communications Act 2015 (NZ). 57 Ibid, section 22(3). 58 Ibid, section 4. 59 Ibid. 60 N Henry and A Powell ‘Beyond the “Sext”: Technology-Facilitated Sexual Violence and Harassment against Adult Women’ [2015] Australian & New Zealand Journal of Criminology 48, 104. 61 J Quirke (n 51) 78. 62 Ibid, 80. 63 See generally, A Gillespie ‘“Trust Me, It’s only for Me”: “Revenge Porn” and the Criminal Law’ [2015] Criminal Law Review 11, 866. 64 Section 35(3) Criminal Justice and Courts Act (2015). 65 Ibid, section 35(5). 66 Marina Marshall v. Lenisha Augustine DOMHCV 2001/0319. 67 Section 33(1)(b) Criminal Justice and Courts Act (2015). 68 Section 2(1) Abusive Behaviour and Sexual Harm (Scotland) Act. 69 Ibid, section 1(7). 70 Ibid, section 3(1)(b). 71 Ibid, section 3(2). 72 D Reece-Greenhalgh ‘Revenge Porn: Widening the Net?’ Criminal Law and Justice Weekly, 4 July 2016. 73 Ibid. 74 Hansard (16 November 2016) Volume 776, Speech by Lord Marks, available at https://hansard.parliament.uk/lords/2016-11-16/debates/DE488DE7-5743-45D2-9EB1-6C8AEEF6908E/PolicingAndCrimeBill. See, in particular, comments by Baroness Williams and Lord Pannick. 75 List of cases with brief descriptions can be found on the CPS website: http://www.cps.gov.uk/news/latest_news/prosecutors_being_advised_to_learn_from_revenge_porn_cases/ 76 (Barkingside Magistrates Court) 7 July 2015. 77 (St Albans Magistrates’ Court) 18 September 2015. 78 (Kidderminster Magistrates’ Court) 13 August 2015. 79 (Croydon Magistrates’ Court) 24 September 2015. 80 (Stevenage Magistrates’ Court) 1 September 2015. 81 (Ipswich Magistrates’ Court) 8 November 2016. 82 (Reading Magistrates’ Court) 16 May 2015. 83 (Bristol Magistrates Court) 13 August 2015. 84 (Woodspring Magistrates Court) 30 July 2015. 85 (Bolton Crown Court) 30 May 2016. 86 I Proctor ‘Man Who Posted Revenge Porn on Facebook and Whatsapp Wins Cut to Sentence’ The Bolton News, 6 June 2016, available at http://www.theboltonnews.co.uk/news/bolton/14539021.Man_who_posted_revenge_porn_on_Facebook_ and_Whatsapp_wins_cut_to_sentence/ 87 See also R v. Clayton Kennedy (Cardiff Magistrates Court) 6 July 2015 (the defendant was sentenced to a 12-month Community Order, fined £110 and ordered to pay court costs of £295 and given an indefinite restraining order for posting intimate pictures of a woman onto Facebook, the victim was not aware the photo had even been taken, causing further distress); R v. Paul Marquis (Teesside Magistrates Court) 30 June 2015 (the defendant was sentenced to an 18-week suspended sentence, received a tagged curfew and ordered to pay costs and compensation after he sent an intimate image of a woman to her friend); R v. Jamie Law (Uxbridge Magistrates Court) 2 July 2016 (the defendant was convicted and was sentenced to 12 weeks imprisonment and a restraining order was granted for 3 years where he sent pictures of a woman to her brother); R v. William Nelson (Croydon Magistrates’ Court) 24 September 2015 (the defendant was sentenced to 2 months imprisonment suspended for 18 months, in addition to a restraining order was also put in place along with 100 hours unpaid work and costs, where he set up a fake Facebook account and posted approximately 30 intimate photographs of the woman. He then sent friend requests to her friends and family from the fake account). 88 Hansard (16 November 2016) Volume 776, Column 1437. Speech by Lord Marks, available at https://hansard.parliament.uk/lords/2016-11-16/debates/DE488DE7-5743-45D2-9EB1-6C8AEEF6908E/PolicingAndCrimeBill 89 These laws can be viewed at the Cyber Rights Initiative online database, available at https://www.cybercivilrights.org/revenge-porn-laws/ 90 §161.005 Oregon Revised Statute. 91 §76-5b-203, Utah Code. 92 §647(j)(4). 93 Title 16, ch. 11, Art. 3, Part 1, 16-11-90. 94 §21.16. 95 (Oregon Circuit Court) 1 December 2016. 96 Case No. 2:14-cv-02100 (Arizona District Court). 97 ML Jones Ctrl + Z: The Right to Be Forgotten (New York University Press 2016) 71. 98 M Wasser ‘AZ Revenge Porn Law Not to Be Enforced, Says Federal Judge’ Phoenix New Times, 13 July 2015, available at http://www.phoenixnewtimes.com/news/azrevengepornlawnottobeenforcedsaysfederaljudge7486054 99 Docket No. 1144-12-15Bncr. 100 Ibid, 3. 101 Ibid, 5. 102 See generally for critique on US legislation and associated case law, C Calvert ‘Revenge Porn and Freedom of Expression: Legislative Pushback to an Online Weapon of Emotional and Reputational Destruction’ [2013] Fordham Intellectual Property Media and Entertainment Law Journal 24, 673. 103 JC Rodriguez ‘Israel Criminalizes “Revenge Porn” in New Bill’ Law360, 7 January 2015, available at https://www.law360.com/articles/499212/israel-criminalizes-revenge-porn-in-new-bill 104 M Bohlander German Criminal Code (Federal Ministry of Justice, 2010) 98, available at https://ec.europa.eu/anti-trafficking/sites/antitrafficking/files/criminal_code_germany_en_1.pdf 105 S Matsui ‘The Criminalization of Revenge Porn in Japan’ [2015] Washington International Law Journal 24, 289. 106 SVG Cybercrimes Act can be accessed here: http://www.assembly.gov.vc/assembly/images/stories/cybercrime%20bill%202016.pdf 107 Z Franklin ‘Justice for Revenge Porn Victims: Legal Theories to Overcome Claims of Civil Immunity by Operators of Revenge Porn Websites’ [2014] California Law Review 102, 1303. 108 CV 2014-01949, Unrep. Jud. [TT]. © The Author(s) 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)

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Statute Law ReviewOxford University Press

Published: Oct 11, 2018

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