Social media and the law are striking back at revenge porn

HOW would you feel if someone posted nude or explicit photos of you online? How about if they were posted by a former partner following a separation? Most people would be understandably mortified.

Few, if any, other form of privacy violations can be as hurtful and embarrassing as "revenge porn". Consequently, society must act decisively in addressing this issue.

Yet until recently there was little one could do to prevent a former partner from posting compromising images or videos online, or to take them down once they're released into the wild via social media.

But that's starting to change. Social media sites such as Facebook, Twitter and Reddit, are beginning to take a much sterner stance against revenge porn, and the law is also starting to catch up.

Revenge porn has often been bundled with other forms of "sexting". However, there are significant distinctions between consensual sexting and revenge porn. While sexting has been discussed extensively in legal literature and been the object of several law reform reports, revenge porn is now emerging as a distinct issue.

An internet problem

From a technical perspective, revenge porn requires two things:

The means to capture images/video, and

The means to distribute those materials.

Given that just about everyone has a good quality camera in their mobile phone or tablet and an internet connection these days, it is no wonder that these conditions are easily met. Or that revenge porn has become a major issue today.

Things have changed considerably since what appears to be Australia's first revenge porn case Giller v Procopets. Here, a man had filmed his sexual activities with his partner at the time. When the their relationship deteriorated, the man showed the video tape to some people, and attempted, and threatened, to show it to others. On appeal to the Court of Appeal, the victim was awarded A$40,000 for injury to feelings as a result of the breach of confidence.

As with most, if not all, technology-related problem-areas, we need to turn to what I call the holy trinity of "reg", "tech", and "ed" -- we need regulation, technological solutions and education. Here I want to focus on some recent developments in the private sector as well as legal regulation of revenge porn.

Regulation by the private sector

For victims of revenge porn, the removal of the materials is of course a priority. For this reason, the cooperation of the platforms on which revenge porn is posted is of fundamental importance. Indeed, the power of the social media platforms is such that they can in some cases actually prevent the posting in the first place. It is therefore frustrating when decisions by social media organisations to block or allow content are opaque and inconsistent.

However, several social media sites are now working to improve their processes and clarify their practises. For example, as of last week Twitter now makes clear that:

You may not post intimate photos or videos that were taken or distributed without the subject's consent.
And on March 16, 2015, Facebook announced new "Community Standards" to govern the conduct of its 1.39 billion users. The policy specifically addresses revenge porn:

To protect victims and survivors, we also remove photographs or videos depicting incidents of sexual violence and images shared in revenge or without permissions from the people in the images.

Our definition of sexual exploitation includes solicitation of sexual material, any sexual content involving minors, threats to share intimate images, and offers of sexual services. Where appropriate, we refer this content to law enforcement.

This is an important step, and follows a recent announcement by social media site Reddit that it has banned non-consentual nude photos shared on its site.

Regulation by the law

The law is also starting to react to revenge porn. As was reported in February, police and prosecutors in the UK are now equipped with a new criminal offence in order to tackle revenge porn. Canada, Japan and Israel are also working on legislation.

And in the US, for example, a man from San Diego was convicted in a case involving the running of a revenge porn website. There are also dozens of US states joining the push to crack down on revenge porn.

One contentious issue is what level of compensation courts should award in revenge porn cases. This issue was brought into the limelight in a judgement handed down by the Supreme Court of Sweden (in Swedish). The Court awarded 76,000 kroner (~A$11,500) in compensation. The Supreme Court thereby more than doubled the compensation awarded by a much criticised decision by a lower court. That lower court had justified a lower amount of compensation by reference to the fact that a strong degree of openness about sexuality was now accepted in the contemporary ethical and social standards of a large section of the public.

This appears to be an example of an older generation misreading the social standards of a younger generation. Privacy -- not least in the sense of self-determination -- still matters, not least when it comes to matters such as sexuality.

And it seems both social media companies and the law are starting to catch up and deal with revenge porn.

- Dan Jerker B. Svantesson is Co-Director Centre for Commercial Law at Bond University

The Conversation