Revenge Porn Continued from previous page non-consensual pornography to trap unwilling individuals in the sex trade.21 The disclosure of intimate images – or the threat of such disclosure – is often used to punish and discourage outspoken or successful women.22 The practice normalizes non-consensual sexual activity, promotes the use of sex as punishment, control, and extortion, and encourages the consumption of sexual humiliation as a form of entertainment. Non-consensual pornography is not a new phenomenon, but its prevalence, reach, and impact has increased in recent years. The Internet has greatly facilitated the rise of non-consensual pornography, as dedicated “revenge porn” sites and other forums openly solicit private intimate images and expose them to millions of viewers, while allowing the posters themselves to hide in the shadows.23 As many as 3000 websites feature “revenge porn,”24 and intimate material is also widely distributed without consent through social media, blogs, emails, and texts. Like domestic violence, sexual assault, and sexual harassment, non-consensual pornography is disproportionately targeted at women and girls. These are also the types of conduct that have historically been taken less seriously by both law and society, and for which 21 See Ann Bartow, Pornography, Coercion, and Copyright Law 2.0, 10 Vand. J. Ent. & Tech. L. 799, 818; Marion Brooks, The World of Human Trafficking: One Woman’s Story, NBC Chicago, Feb. 22, 2013. 22 Emma Gray, The Emma Watson Threats Were A Hoax, But Women Face Similar Intimidation Online Every Day, Huffington Post, Sept. 26, 2014. 23 Dylan Love, It Will Be Hard to Stop the Rise of Revenge Porn, Business Insider, http://www. businessinsider.com/revenge-porn-2013-2, Feb. 8, 2013.
http://www.economist.com/news/ international/21606307-how-should-onlinepublication-explicit-images-without-their-subjectsconsent-be 24
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victims rather than perpetrators are routinely blamed. Victims are told that they should never have taken or shared the images to begin with, and that by consenting to be seen naked by one person, they are effectively agreeing to being seen by the entire world. Before 2013, there were few laws explicitly addressing this invasion of sexual privacy, even as concerns over almost every other form of privacy (financial, medical, data) have captured legal and social imagination. While some existing voyeurism, surveillance, and computer hacking laws prohibit the non-consensual observation and recording of individuals in states of undress or engaged in sexual activity, including New York’s unlawful surveillance law, the nonconsensual disclosure of intimate images has been largely unregulated by the law. This is beginning to change. The Philippines criminalized non-consensual pornography in 2009, making it punishable by up to 7 years’ imprisonment.25 The Australian state of Victoria outlawed non-consensual pornography in 2013.26 In 2014, Israel became the first country to classify non-consensual pornography as sexual assault, punishable by up to 5 years imprisonment.27 Canada, the United Kingdom, Brazil, and Japan are all currently considering
World Intellectual Property Organization, AntiPhoto and Video Voyeurism Act of 2009 (Republic Act No. 9995), http://www.wipo.int/edocs/lexdocs/ laws/en/ph/ph137en.pdf
25
26 Daily Mail, ‘Revenge porn’ outlawed: Israel and Australia ban spurned lovers from posting compromising photos of their exes, http://www. dailymail.co.uk/femail/article-2535968/Revengeporn-outlawed-Israel-state-Australia-ban-spurnedlovers-posting-compromising-photos-exes.html, Jan. 8, 2014.
Yifa Yaakov, Israeli law makes revenge porn a sex crime, Times of Israel, http://www.timesofisrael. com/israeli-law-labels-revenge-porn-a-sex-crime/, Jan. 6, 2014.
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legislation on the issue.28 In 2014, a German court ruled that an ex-partner must delete intimate images of his former partner upon request.29 As Vice-President of the Cyber Civil Rights Initiative,30 a nonprofit organization advocating for legal, social, and technological reform to address online abuse, I drafted model federal and state criminal laws prohibiting the disclosure of private, sexually explicit images without consent and with no legitimate public purpose.31 Before 2013, only three U.S. states had criminal laws that could address non-consensual pornography as such; now 15 states do, many of them basing their laws on CCRI’s model state statute.32 Punishment ranges from fines to up to five years in prison. Legislation has been introduced or is pending in 17 other states, as well as the District of Columbia and Puerto Rico.33 In addition to working with several states, CCRI is working with Representative Jackie Speier (D-CA) on U.S. federal criminal legislation to protect sexual privacy.34
28 Alex Cochrane, Legislating on Revenge Porn: An International Perspective, Society for Computers and Law, http://www.scl.org/site.aspx?i=ed38027, July 24, 2014. 29 Philip Oltermann, ‘Revenge porn’ victims receive boost from German court ruling, The Guardian, http://www.theguardian.com/technology/2014/ may/22/revenge-porn-victims-boost-german-courtruling, May 22, 2014. 30 Cyber Civil Rights Initiative, http://www.cybercivilrights.org/about 31 Mary Anne Franks, Combating Non-consensual Pornography: A Working Paper, SSRN, http:// papers.ssrn.com/sol3/papers.cfm?abstract_ id=2336537, Sept. 7, 2014. 32 Mary Anne Franks, Drafting an Effective ‘Revenge Porn’ Law: A Guide for Legislators, SSRN, http://papers.ssrn.com/sol3/papers.cfm?abstract_ id=2468823, July 18, 2014. 33
Id.
Mary Anne Franks, The Need for Sexual Privacy Laws, Brookings Institution, http://www.brookings. edu/blogs/techtank/posts/2014/09/09-sexual-privacy-laws, Sept. 8, 2014. 34
Atticus | Volume 27 Number 1 | Winter 2015 | New York State Association of Criminal Defense Lawyers