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Home > Articles > 2015 archive

Malicious use of intimate images : the problem and some practical and legal remedies

Ariel Ricci, barrister at Coram Chambers, Julie Pinborough, Founder and Director of the Queen Mary Legal Advice Centre and Frances Ridout, Deputy Director of the Queen Mary Legal Advice Centre consider the growing problem of “revenge pornography".

Ariel Ricci, barrister at Coram Chambers, Julie Pinborough, Founder and Director of the Queen Mary Legal Advice Centre and Frances Ridout, Deputy Director of the Queen Mary Legal Advice Centre.

 

A brave new world
Our lives are dominated by smartphones, which change the way we communicate and, importantly, the way we commence, conduct and end relationships.  It is commonplace for relationships to form through dating applications and for communication during a relationship (of any level of seriousness) to include taking or sharing photos or videos.  The vast majority of people have smartphones that can instantly take high quality digital photographs and videos.  Then with a single finger swipe, photos and videos can be shared with an intimate partner, friends, or the public using Twitter, Instagram, WhatsApp and Snapchat to name but a few.

This creates a new dynamic to how friendships and relationships are conducted and increases the scope for abusive, controlling or vengeful behaviour. Lawmakers around the world are scrabbling to play catch-up with technology.

What is "revenge pornography"?
Some take issue with the phrase "revenge porn", as it does not fully and accurately reflect the growing problem of sharing sexually explicit images without the subject's consent, often with the aim of causing embarrassment, shame or distress.

The Queen Mary Legal Advice Centre refers to it as SPITE –"Sharing and Publishing Images To Embarrass", although this less shocking phrase has not yet grabbed headlines. The reality is that there is still a category of distribution that is neither for revenge nor for embarrassment but can arise from thoughtlessness, or may be influenced by the desire for control, or by financial motives.  Sometimes the images themselves would not, if viewed in a different context, be considered "pornographic".  Whilst "revenge porn" is an inaccurate term for this growing problem, it is now a convenient short-hand in common usage.

Sharing intimate images without consent (or threatening to do so) might be done by a current or ex-partner, but there have been reports of image sharing by friends, ex-friends, acquaintances, dates, one-night-stands, or even strangers (if images are obtained by hacking). Intimate photos shared on dating websites between strangers can re-surface years later or innocuous photos can be manipulated and distributed. 

In 2014, Israel became the first country to specifically outlaw so-called "revenge porn", followed by Australia, Canada, Japan, New Zealand and a number of American states.  England and Wales followed suit and in April 2015, s.33 of the Criminal Justice and Courts Act 2015 came into force, which criminalises "disclosing private sexual photographs and films with intent to cause distress".

The most obvious example is a couple who take or share intimate images.  This may start as consensual image sharing with someone they trust, but can later turn sour with an angry ex-partner publishing the images online.  Sometimes the images are accompanied by personal information, such as name, address, telephone number, or workplace details and encourage contact from strangers.  This might include creation of profiles on social media sites, dating sites, or pornography sites purporting to be the pictured individual, leading to unintentional harassment by unwitting third parties.  Another example involves a new 'fake' social media profile being created of the victim; the 'fake' profile invites the victim's friends and family to connect and inadvertently view intimate images and videos.

Another disturbing method includes creating sexually explicit material by photo-shopping someone's face with another person's body and then sharing the new images.  Any image is vulnerable to abuse.  Troublingly, the new legislation does not cover images that have become sexual by virtue of being combined with other images.

The images might be published to deliberately humiliate or degrade the subject, or to manipulate ("if you do x, I will send this photo to your family"), or to extort money or other favours by blackmail.  A number of websites that encouraged posting explicit photographs and demanded payment from the subject for their removal have subsequently been shut down.  Recently in America, a 28 year-old was sentenced to 18 years' imprisonment for running a website that charged hundreds of dollars to remove nude images and personal information posted by others.

What is the extent of the problem and upon whom does it impact?
The scope for abuse is limitless and its effects can be devastating.  It impacts upon both men and women and people of all ages, from secondary school students (the youngest reported victim in the UK was 11) to pensioners.  Equally, the issue is not confined to specific classes or socio-economic backgrounds.  The problem is just as prevalent amongst professionals and high powered executives as it is amongst students, the unemployed or low-skilled workers.

In some relationships, there might be a pattern of abuse that includes physical, emotional or sexual abuse.  Combined with other forms of abuse, a threat to share images might not be treated as seriously as other abusive behaviour, whether by police, support agencies or the victim.  In other scenarios, it might be isolated and be the only abusive behaviour complained of.  Provided the individuals are, or have been, intimate partners or family members, this behaviour falls within the definition of "domestic violence" in accordance with Practice Direction 12J as it can constitute "controlling, coercive or threatening behaviour".

Amongst teenagers, images are often quickly and routinely shared and deleted using applications such as WhatsApp or Snapchat.  There is an increasing pressure amongst teenagers to prove they are sexually active.  It is easy to be pressured into taking photographs (or allowing photographs to be taken) that are shared amongst peers, creating opportunities for a vast network of cyber-bullying.  Once viewed and deleted (in the case of Snapchat, images are deleted automatically within seconds), there may not be any remaining evidence of the offending behaviour; nonetheless the emotional damage and humiliation remains.  Furthermore,  whilst some individuals might think that sending intimate images through Snapchat is "safe" because the images automatically delete; they may not realise that , it is quite possible for the recipient to take a screenshot of the photo or retreive the image and distribute it.

In a criminal case earlier this year, an 18 year old young woman was found guilty of posting footage on Facebook of her best friend having intercourse.  The footage was taken during a night out and published after the friends fell out.  Due to the ease with which information is shared, many young people do not yet appreciate the consequences of sharing images without consent – this includes the impact on the victim and risk to themselves of a criminal conviction.

Where an individual is married or otherwise in a long-term relationship and is having an affair, a jilted lover may seek to cause maximum damage by sharing images with that person's spouse, partner, employer, friends or family.  Similarly, if a partner cheats or otherwise causes hurt, there might be a desire to seek revenge through online humiliation or sharing images with employers or colleagues anonymously.

Young or vulnerable teenagers who have been groomed or been victims of child sexual exploitation may feel unable to seek help or advice out of fear that images taken of them will be shared with friends or families.  The scope for manipulation and coercion due to shame, fear and humiliation should not be underestimated. There are cases where photographs taken during periods of childhood abuse are years later distributed (or threatened to be distributed) causing victims to re-live the painful memories and undergo a different variant of abuse.

Because victims will often blame themselves for taking, allowing to be taken, or sharing images, they may feel unable to seek help or support.  The problem is likely to be widespread, yet the full extent of it is not yet known or understood.

It is evident that society is yet to view those subjected to revenge pornography as victims.  For example, at Glastonbury this year, Kim Kardashian endured the humiliation of an intimate image of a sexual act with an ex-partner being waved on a flag during her husband's performance.  This was commonly viewed in a number of media spheres as amusing rather than a criminal offence.

How does it relate to family law?
Due to the widespread nature of the issue, it is likely to become pervasive within family law.  As a recent example, the case of RC (mother) v AB (father) [2015] EWHC 1693 (Fam) was a private law application for leave to remove from the jurisdiction and the behaviour of the parents was explored. 

Amongst other things, it was found that the father arranged for a friend to post on Instagram an explicit and intimate photograph of the mother, accompanied by an offensive message directed to her, ending with the words "bring back my child".  He had also led the mother to believe that he might publish an intimate video of them having intercourse taken years earlier.  Cobb J found these incidents, amongst others, to be harassing and done deliberately and knowingly to hurt her – he gave leave for his judgment to be disclosed to the Metropolitan Police.

In family proceedings, the issue might arise in the following ways:

• injunctions - applications for non-molestation orders or protection from harassment orders to prevent sharing intimate images, threats to share intimate images, or creating online profiles to impersonate the victim and encourage unwelcome advances by third parties.

• private law proceedings – as part of a fact-finding exercise to determine the extent of controlling, manipulative, or harassing behaviour during a relationship or following separation to the extent that it is relevant to child arrangements. 

• public law proceedings – where vulnerable teenagers or young people are victims of sharing (or threats to share) intimate images or a subject child sharing intimate images and being charged/convicted of a criminal offence. 

• financial remedy proceedings – sharing intimate images or posting information on social media platforms can have a direct impact on an individual's current or future employment might become a relevant conduct issue, or the ownership of sexual photographs or videos might become disputed property.

• in any proceedings, allegations may arise of threats to release intimate photos or videos as a means to manipulate or coerce an individual into taking or ceasing a particular course of action.

How does one ensure images/videos are removed?
If this arises for a client, their likely first priority will be the removal of the images from public platforms. The National Revenge Porn Helpline has links with online platforms and can provide assistance and advice about getting images removed.  Twitter, Facebook, Reddit and a number of other social media sites have banned nude photographs being posted without the subject's permission and have policies for swift removal.   Recently, Google announced that it will facilitate swift removal of non-consensual images from internet searches (though they are unable to remove it from the original website), which can be particularly useful to reduce the impact where it is proving difficult to get an image removed from the website directly. 

What remedies are available for victims?
Victims are advised to take screen shots of the images before removal or deletion to support further action being taken if necessary.  Depending on the circumstances, the actions may be a criminal offence and should be reported to the police; however, for immediate protection, it may be appropriate to apply for an injunction. 

Non-molestation orders can be applied for if the victim and the perpetrator are "associated persons" or, if not, a protection from harassment order might be an option.  The wording of the proposed order will need to reflect the precise behaviour that it is sought to prevent. Simply prohibiting an individual from contacting or harassing an individual is unlikely to be specific enough and thought should be given to the order prohibiting an individual from publishing/sharing personal information, intimate images, or impersonating the victim on online platforms.  Orders should be specifically tailored to ensure they clearly prevent the behaviour complained of reoccurring.

If the images were taken by the subject themselves, they may own the image and have remedies (including for injunctions and delivery up) under copyright law.  The Queen Mary Legal Advice Centre offers free legal advice and assistance to victims about their legal remedies.