Views from the bar: The law and revenge porn

Kanisa George

Public scandal and bacchanalia are nothing new to our close-knit society. Add social media and easy access to smartphones to the mix, and soap opera-themed drama can run like wildfire throughout our land in under an hour.

The 24-hour drama train often comes to town and leaves behind a string of comments, laughter and a few minutes of stress relief for members of the viewing public. And by day’s end, shared images are usually stamped marked with the “forwarded many times” logo signalling widespread access, viewership and comess sharing.

Any way you slice it, we live for the no-holds-barred internet drama we saw unfolding during last week’s Carnival festivities. Some of us were even complicit in passing obscene and degrading content around, adding fuel to the circus already on full display. We’ve seen it all on the internet. Browny the dog’s viral memes, criminal elements using high-powered rifles and, of course, thousands of pornographic images and content of a sexually charged nature. Yet while we might have unrestricted access to content of this nature, it is sometimes lost on us that the vast majority of these videos were uploaded without permission (usually of the female participant featured).

Non-consensual pornography, familiar to most people as revenge porn, includes the distribution of sexually intimate images and videos of someone without their permission. The motive, according to a 2017 US report, can be linked to financial gain but is commonly used for humour, sexual gratification, or to prove masculinity to other people. Women, research suggests, are almost twice as likely as men to be victimised, and men are twice as likely as women to be the perpetrators.

Initially, revenge porn was considered a teenage/young adult issue commonly linked to teen cyberbullying. But over the last decade, there has been an increase in non-consensual pornography activity with growing adult participation.

Seeing very private aspects of a person’s life online might be a source of comedic/entertainment relief for some of us. Still, we need to pause for a moment and recognise the potentially deadly repercussion accompanying this vile act. Not only is this breach of confidence utterly embarrassing, but it can also cause severe issues in one’s personal and professional life and, in some cases, lead to depression and suicide.

In response, legislative models have been implemented across the globe to address revenge porn and its somewhat permanent impact on victims.

Although civil redress is made possible after the landmark High Court decision in Therese Ho v Lendl Simmons, when it comes to criminalising this downright egregious behaviour, we are still straggling behind.

Proposed legislation, namely the Sexual Offences (Amendment)(No 3) Bill 2021, seeks to impose hefty fines and possible jail time for revenge porn-style offences. One enactment the proposed amendment would seek to establish is an offence for any person who engages in conduct amounting to capturing and distributing of images without the consent and reasonable belief of consent from the individual who forms the subject matter of said image.

Recently, criminologists have considered whether laws concerning some forms of non-consensual image sharing should also have a heading under domestic violence legislation. Because while this is a form of cyberbullying, writers are adamant it can also fit into the intimate-partner violence category.

A study published by Asia Eaton in 2020 examined whether non-consensual porn perpetrated within intimate relationships contains the common features of intimate partner violence. The results showed that non-consensual porn includes all eight features of power and control that characterise domestic violence, especially emotional abuse, coercion and threats, denial, blame and minimisation.

One of the key features in the revenge porn saga is the continued access to intimate images after a relationship has ended. In some countries like Germany, the law gives women the right to “revoke consent” and requires a partner to delete intimate images at any time, even if they’re only held privately.

This proactive legal move ensures that intimate photographs can be deleted at the end of a relationship if one of the parties makes a request.

Sextortion is also a recurring trend in the revenge porn universe forcing legislators in many jurisdictions (even in our amendment Bill) to criminalise threatening to share intimate images. This is another proactive step used to protect victims and prevent the sharing of intimate images.

Of course, cyberspace is an ever-changing, ever-evolving paradigm. Still, in more ways than one, legal tools are paving the way to provide victims with much needed protection from cyber-attacks and, in some cases, prevent scandal and mayhem from even stepping through the door.