Revenge Pornography/ Non-consensual Intimate Images

Author: Richard Wingfield

NB: While the term ‘revenge pornography’ is commonly used, many argue that it is inappropriate since it suggests a degree of complicity or consent on the part of the person in the images. Instead, terms such as ‘non-consensual intimate images’ are now considered to more appropriately describe the phenomenon and this term is used here.

This entry: (i) sets out examples of definitions of the term and (ii) provides examples of existing regulatory responses to non-consensual intimate images.

(i) Examples of definitions of the term

‘Non-consensual intimate imagery’ can be broadly understood as the distribution of sexually explicit images or videos of an individual without their consent. Unlike other forms of intimate imagery, such as consensual pornography, which existed prior to the internet, the distribution of non-consensual intimate imagery is a more recent phenomenon, spawned by “changes in technology, including the advent of social media and websites that feature user-generated content, in conjunction with the ease of taking and sharing digital photographs and video (particularly on smartphones, tablets, and mobile devices” (Magaldi et al., 2020¹). The literature on the subject (Franks; Waldman, 2018²) has also drawn attention to the role of deep fake technologies on the manipulation of images of women and girls, with the end of creating ‘deep nudes’, i.e., images altered to ‘involuntary fake porn’.  

Legal definitions of the phenomenon, particularly those that criminalize such distribution, often include further elements and exceptions, for example, a requirement that there be an intention to cause harm or distress, that the individual in the image or video had a reasonable expectation of privacy, and that no legitimate purpose to the distribution (such as for law enforcement purposes).

(ii) Existing regulatory responses

Several states and subnational jurisdictions governments have prohibited distributing non- consensual intimate images through the creation of criminal offenses. Databases of criminal laws in place can be found at, e.g., the Center for Internet and Society³ and the InternetLab (2018)⁴ websites. While the specific wording may vary, common to all criminal offences are the core requirements that (i) a person disseminates an image or video of another person, (ii) that image or video is sexually explicit; and (iii) the dissemination is done without the consent of the other person.

As noted above, some states have also included further elements and exceptions. In Canada, for example, the images or video must have been taken with a “reasonable expectation of privacy” (section 162.1 of the Criminal Code). In England and Wales, the person distributing the images or videos must have done so with “an intention of causing [the] individual distress” (section 33 of the Criminal Justice and Courts Act 2015), and in South Africa, there must have been an “intent to cause them harm” (section 18F of the Films and Publications Act).

Beyond outright criminalization, there are few examples of regulatory responses, particularly when it comes to the liability of online platforms which are used to share non-consensual intimate images. One example is Article 21 of Brazil’s Civil Marco da Internet, which provides for a specific liability regime in cases involving “the breach of privacy arising from the disclosure of images, videos and other materials containing nudity or sexual activities of a private nature, without the authorization of the participants”. In such instances, a platform can be held liable for such material where they fail to remove the content, in a diligent manner, and within its own technical limitations, when notified of it by the individual involved or their legal representative (i.e., a ‘notice and takedown’ regime).

References

1. Magaldi, J. A., Sales, J. S., Paul, J. (2020). Revenge Porn: The Name Doesn’t Do Nonconsensual PornographyJustice and the Remedies Don’t Offer the Victims Enough Justice. Or. L. Rev., 98, 197.
2. Franks, M. A., Waldman, A. E. (2018). Sex, lies, and videotape: Deep fakes and free speech delusions. Md. L. Rev., 78, 892.
3. The Center for Internet and Society, Revenge Porn Laws across the World’ Available at: https://cis-india.org/internet-governance/blog/revenge-porn-laws-across-the-world.
4. InternetLab. (2018). How do countries fight the non-consensual dissemination of intimate images? Available at: https://www.internetlab.org.br/en/inequalities-and-identities/how-do-countries-fight-the-non-consensual-dissemination-of-intimate-images/.