Revenge porn is an undoubtedly vile phenomenon. A couple, often young and foolish with lust, get together and share trust and intimacy. In the modern style, they take pictures or videos of each other or “sext” each other revealing selfies.
Then they break up and he posts these pictures on a website and labels her a whore to the world. Modern love?
This is, of course, a very partial description. Revenge porn can cut across same-sex as well as heterosexual couples, and can be done by the girl to the boy as much as the other way round. Yet revenge porn is typically one of the nastiest offshoots of the misogynistic abuse rampant and normalised in the online space, as seen in recent cases like the Criado-Perez and Stella Creasy Twitter abuse storms.
How then do we try to stop revenge porn, as we undoubtedly should? The kneejerk reaction – which we saw in hasty and ill crafted amendments to the Criminal Justice and Courts Bill last week – is to say Something Must be Done. New criminal laws must be passed. Sentences must be extended. Draconian powers must be given demanding all social networks institute real name policies (even though these would be unenforceable and harm the vulnerable more than abusers).
New laws ‘unnecessary and counter-productive’
A timely House of Lords Select committee report, released today, points out that something has already been done, and that even with a “new” phenomenon like revenge porn, new laws are both unnecessary and quite possibly counter-productive.
In oral evidence given to the committee, the police, civil rights organisations, social networks and a leading QC all pointed out that in fact we already have a multiplicity of overlapping criminal laws in place around harassment, threats, menace and abuse, which apply as much to the online world as the offline.
Adding new laws to this existing jungle is likely to confuse the public, perplex arresting police and mystify the internet abuse teams which work across time zones on an international scale rather than looking at the laws of one small island. It would also be likely to lend scope to ill-conceived prosecutions jeopardising ordinary free speech rights, such as the notorious Twitter Joke Trial.
Victims want a remedy, not a prosecution
The US experience (sadly about six months to a year in advance of the UK) is that what victims of revenge porn really want most urgently is a remedy, not a prosecution.
While pictures of women branded as sluts, victims, home-wreckers (etc) stay accessible on the internet, job opportunities, new relationships, college entry and basic self-esteem are wrecked. On many US based sites, images stay up till blackmail is paid.
Responsible sites such as Facebook, Twitter and Tumblr depend on the goodwill of their clientele and are already responsive to take down requests (although possibly not as fast as could be hoped – see below). But because websites hosted in the US benefit from a law which gives them complete immunity from prosecution or action relating to content posted by users, smaller, less reputable sites - like the notorious MyEx.com or IsAnybodyUp.com - can refuse to take down revenge porn without incurring legal liability and do so as a lucrative business model.
Increasingly UK and EU women will find images of themselves, sickeningly, on these sites, and UK prosecutions, or longer sentences, will do little or nothing to help.
The solution is a take down, and link removal
A good remedy for the UK thus involves two steps : mandatory take down of images posted without consent from hosting sites in the UK, and, if take down is not obtainable because the host site is in the US and hiding behind a liability shield, a right to removal of the link from Google’s memory so a search on a name will not bring up as first result shocking pictures posted and hosted without consent.
Many press reports have responded negatively to the recent Google Spain European Court of Justice case, which held that a person has the right to have a link relating to their name which is inaccurate, misleading or distressing removed from the search engine – the so-called “right to be forgotten”.
Whether you view this as a vindication of basic rights to control our own personal data online, or a worrying trend for the public record online, it is an undoubted godsend to revenge porn victims. Google is the search engine of choice for around 90% of European users – if a link vanishes from their index, the content essentially ceases to exist.
Some will say this is an after the fact remedy, and that we still need to make examples to stop people doing it in the first place. We again already have a law, the same law used in the recent high profile Twitter cases, which criminalises “malicious, threatening or grossly offensive” speech sent through email or posted online. Again the Lords report calls usefully for it to be clarified if “grossly offensive” does cover revenge porn, for which there is currently no clear case law.
A social problem, not a legal problem
Long term revenge porn, just like Twitter misogyny and the kind of racist and homophobic abuse routinely hurled online at people like Tom Daley and Felix Mwamba, is not a criminal law problem but a social problem.
We need, by education in schools and homes, by peer pressure and, most immediately, by swift and resolute response from hosting social networks, to show that this behaviour is unacceptable.
Facebook and Twitter both revealed in oral evidence to the Lords that their abuse response teams – for their global markets, not the UK – were in the low hundreds not the thousands. They also pointedly refused to say how many abuse complaints they received per day, what their clean up rate was or the speed of response.
Victims complain that response from abuse teams takes too long, and is hesitant when it comes. Facebook and Twitter’s watchword is self-help – block your abuser from your Twitter feed, ask your troll to stop tagging pictures of you.
Blocking in revenge porn especially does precisely no good since the image is still out there, destroying reputations; self help is of course much cheaper and easier for the networks than investing in real-time monitoring or intervention.
Worse is the frequent suggestion that women who suffer on social networks should simply withdraw from the internet. In today’s world, the internet is a vital part of all lives and asking women to withdraw from it to some kind of digital purdah is in itself shockingly misogynistic.
As Criado-Perez herself recently said : “When a woman does speak up, she runs the risk of being shouted down by a society that is still so scared of a woman’s voice, it must silence it by any means necessary - including the threat of rape, of death.
“To that society, women must shout back and louder, until a woman’s voice is as unremarkable as a man’s. Only then will we combat the fear of a woman’s voice; only then will we live in a democracy worth the name.”
- Lilian Edwards is professor of internet law at the University of Strathclyde, Glasgow. Disclaimer: Lilian Edwards was the Specialist Adviser to the Lords Select Committee on communications report on social media and criminal law. However the views above are hers and hers alone
