An iterative update on my ongoing work on revenge porn and how to deal with it. This talk analyses recent legislation and Google's recent decision to extend the "right to be forgotten" to revenge porn and argues both forgiving (restorative justice) and forgetting (RTBF) may be more useful remedies than the crimainal law alone for victims.

1. Revenge porn : punish, remove,
forget, forgive?
University of
Hertfordshire
July 2015
Lilian Edwards
Professor of E-
Governance
University of
Strathclyde, Glasgow
& Deputy Director,
CREATe
Lilian.edwards@strath.ac.uk
@lilianedwards
Pangloss blog :
http://blogscript.blogspot.co.uk/

2. Revenge porn
• What is revenge porn? “Bastard child of sexting”?
• Probably not new but exacerbated by smartphones, social networks,
WhatsApp, Snapchat , dedicated sites etc
• Usually ex-partners, usually images originally given consensually but
shared non consensually
• Hence preferred name: “non consensual sharing of private/intimate
images”
• Avoids confusion with illegal porn – usually child images or “extreme”
• But not always post relationship; eg threats to do a “Jennifer
Lawrence” on Emma Watson by 4chan (hoax, but still..); Ist UK case
involved lost/hacked mobile
• Gendered crime? MacAfee report 2013 – 10% of Americans had
threats of exposure of images by ex partners, 60% of threats acted on,
vast majority of victims women.

3. What are the harms?
• Strongly negative effects – “slut
shaming”, loss of job, depression,
wrecking future relationships,
silencing, suicide? (Hess)
• A new type of harassment? A
virtual sexual assault? Merely
“speech”? A matter for the law at
all? Cf domestic violence? A
matter for the social networks not
the police?
• Arguably art of general wave of
online misogyny and harassment:
– cf UK Criado-Perez/Creasy
cases; “I will rape you
tomorrow at 9 p.m … Shall we
meet near your house?”
– #gamergate
– “Everyday Sexism”
– “Victim blaming” ..
“Ignore the barrage of violent
threats and harassing messages
that confront you online every
day.” That’s what women are
told. But these relentless
messages are an assault on
women’s careers, their
psychological bandwidth, and
their freedom to live online. We
have been thinking about
Internet harassment all wrong.
Hess Why Women Aren’t
Welcome on the Internet

4. Don't let anyone take smutty pictures of you. Trying to remove it from
the Internet is like attempting to empty Loch Ness with a teaspoon.
The simple answer to this problem is not to ever give anyone a photo
that you would mind being put on the internet. No-one is under any
obligation to do such an idiotic thing after all.
How to beat it? - don't take you own boobs selfie
Rhiaden makz
29 July 2014 7:29pm
No, it is horrific that people trust each other, especially in long-term
relationships isn't it?
Victim blaming

5. The problem environment
• Specialist sites in US: IsAnyoneUp.com, 2010; IsAnyoneDown;
MyEx.com; Texxaan.com – often many details attached
• Seen as “free speech” so initial difficulties slotting into limited US
state harassment laws – also problems with intermediaries, see
later
• Sites earn c $10,000pcm in ads; blackmail also a revenue stream –
ugotposted.com (Cal), Kevin Bolleart sentenced 18yrs for ID
theft/extortion April 2015, 1st such conviction
• Now arriving in UK/EU since around start 2014
• More use of “mainstream” sites – FB, Twitter
• Forerunner - AMP case, 2011, FB/BitTorrent, held harassment &
injunctions granted
• “Ist” UK “revenge porn” case , Samuel, Bristol Aug 2014; Pix on FB,
(MCA 88 prosecution)
• 2nd, Luke King, 21, Nottingham, jailed Nov 14, 12 wks (harassment)
• Civil response possible – data protection, breach of confidence –
but likely unhelpful, public desire for criminal law control in UK
apparent

6. Legal responses : US law –
troublesome speech
• Criminal law
– Speech issues – First amendment
– Harassment laws (largely state based) usually very limiting
• Cal. “substantial emotional distress”
• Cal. “gravity of purpose and immediate prospect of execution of
the threat”
– ID theft? Extortion? Some success.
– Some dedicated revenge porn statutes – but may fall foul
of constl guarantees (but see also Israel, Victoria AUS,
Canada ..)
• Remedy of take down against host site?
– US Unless federal criminal law (eg child porn ) or IP
– => Some attempts to take down via copyright (DMCA).
Silly. What about non-selfies?!

7. UK: Criminal law - 1
• “Malicious communications”
1. Communications Act 2003, s 127
2. Malicious Communications Act 1988, s 1
• Both criminalise sending of comms of indecent or grossly
offensive nature” if purpose was to “cause distress or
anxiety to the recipient or to any other person “
• MCA used in Samuel case – but guilty plea.
• Issue – is revenge porn a “grossly offensive or indecent”
communication? (Not “obscene” – restricted to illegal(child) or
extreme sex images under DPP guidelines)
• Issue in revenge porn usually not extremity of content but the
distribution without consent.
• Also MCA not applic Scotland; 6mos jail max till 2015

8. UK: Criminal law – 2 - harassment
Protection From Harassment Act 1997 (PHA)
Not mainly designed for the Internet
Section 2: harassment involves
• a “course of conduct” (at least 2 occasions, s 7);
• which amounts to “harassment “of another; and defendant
knows, or ought to know this
• Harassment not defined but can clearly include “speech” and
non-consensual sharing of images (AMP, King)
• Section 4, 2A and 4A (“stalking”) also relevant; max 5 yrs jail
• Scotland clearly includes cyberstalking in its harassment law
Issue : what if not a “course of conduct” = at least 2 occasions, (s 7)
(will 2 photos do,2 sites?)

9. New UK law
• HL Select Committee on Comms – July 14; no brand new law needed; tweaks, yes.
DPP social media prosecution guidance amended to include revenge porn,
• Bespoke offence in Criminal Justice and Courts Act 2015, ss 33-35 (E&W)
– Offense to disclose “private sexual photo or film”
• Without consent
• With intention of causing that individual distress (“for the lulz?”) BUT not
“causing distress merely because that was a natural and probable
consequence of the disclosure. (?)
– Defenses: “public interest” journalism, detecting crime, previous voluntary
disclosure of image for reward (time lapse?)
– Also E-Commerce Directive defences for intermediaries – see next..
– “Private”? “Sexual”? S 35. (Objective not subjective tests).
– Max 2 years or 12 months on summary trial
• Scots consultation (March 2015) broadly follows English model with tweaks.
• Will new criminal offences make big difference? Already 5 years poss under
harassment and 2 years under CA2003 (and soon, MCA).

10. Is everything fixed then?
Not addressed -
• Remedy of non-judicial take down of content from site for victims??
• Already issue in US – websites protected by Communications Decency Act s
230 ( c) – no website is responsible for content authored by third party –
even after notice – so no incentive to take down
• CCJA15 does not create offence by host sites eg FB – distribution BUT
no intention to cause distress (unless blackmail site?)
• If there was primary offence, EC E-Commerce Directive art 14 creates
immunity from liability IF material taken down “expeditiously”
• Legit sites like FB will probably remove for PR - but often long delays
and hassle
– abuse teams not skilled in local UK law – enforce sites own rules
– Often understaffed for volume, non automatable complaints – promote
blocking of senders by users instead
– Home (US) ethos is usually of robust free speech not EU protectionism
– Twitter: “we suck at dealing with trolls and abuse”, Feb 15
• Rapid shift of attitudes IS happening – by March 2015, FB, Twitter and
Reddit had all changed policies to explicitly ban revenge porn from
their sites (sanctions? Lock a/c, ban user. But..)

11. Forget not forgive?: the “right to be
forgotten”
• EU Data Protection Directive 1995 : Right to control processing of your
personal data.
• Sexual image clearly “sensitive personal data” ie only ground for
processing it = explicit consent, withdrawable -> right to delete the info
under DP law
• “Right to be forgotten” upheld as against Google in ECJ Google Spain
case (C-131/12, 2014)– right not to have your name linked to a certain
page by search engine if breach of DP rights
• -> Easy , cheap (free), fast non judicial vanishing of content
• Also blocks searches to US sites (CDA protected) by google.eu searchers
• Issue: can find link by searching google.com (etc) as RTBF only applied in
EU by Google
• Google agreed (19 June 2015) to remove revenge porn on request and
from all domains not just .eu ones (!)

12. Changing the world..
• More education for users on
safety re images – UK
“Revenge Porn: be aware b4
you share”, Feb 2015 (more
than images? “doxing”?)
• Changes in policing attitudes
and training? Allegedly
social media training
underway.
• Different court remedies?
Restorative justice?
“Forgive”.
• Fundamental changes in
gender attitudes on and
offline? 