The “Revenge Porn” Problem

Politicians and policy makers tend not to have a very good grasp of modern digital media.  A particular annoyance of mine is that we still have the government pushing DAB radio, a technology based on a system that was outdated before it was even launched, and one which in most cases is inferior in quality to FM broadcasts.  I think the general proposition, that politicians and the government don’t really “get it” when it comes to modern media, is one most would agree with.

So against that backdrop of political ignorance, we have to set the campaign for legislation on “revenge porn”, a far more serious issue than DAB.  This is the phenomenon of ex-partners posting compromising photographs on the internet with the specific intention of causing embarrassment.  I think “revenge porn” is actually a pretty unhelpful phrase to describe what’s going on, for several reasons.

Porn

First “porn”.  This is has always been the air-raid siren of moral panic; but pornography in itself is not illegal.  The legal decision on pornographic material concerns whether or not it is obscene, not whether or not it is pornographic.  The legal definition of pornography is material that is “produced solely or principally for the purpose of sexual arousal”.  Modern law rests on the Obscene Publications Act 1959, which sets a test of whether distribution of it would “tend to deprave and corrupt” a significant number of people.  There are other Acts defining offences involving child pornography which already cover “revenge porn” involving minors.

We also have Section 63 of the Criminal Justice and Immigration Act 2008, which deals with “extreme pornography”.  This Act relies on a different definition of obscenity, and in my view muddies the waters unhelpfully by confusing pornography and obscenity.  But of course, it was framed in response to a media panic about pornography, and common sense went out of the window.

The laws of porn aren’t a lot of help to victims of “revenge porn”, and if the images were produced consensually there is no reason why, on their own, they should be.

Revenge

The “revenge” part has got more going for it; there is no reason at all why a party in a relationship should be at risk of abuse of any kind because they choose to end it.  The problem is really the law of harrassment, which requires a “course of conduct” as a trigger.  Sharing just one image does not count as a “course of conduct”.  Neither does threatening to do so.  The apparent weakness of the harrassment law is the one most frequently cited by proponents of a “revenge porn law” as an overwhelming wrong that should be remedied.  But there are also other relevant laws which may be better suited to the task at hand.

Laws exist regulating the use of public communications networks to outlaw obscene, indecent, or threatening messages.  Unfortunately the most famous prosecution under one of these, the Communications Act 1993 , was the ludicrous “Twitter joke trial”.  We also have the Malicious Communications Act 1998, criminalising “any letters, electronic communications, photographs and recordings that are indecent, grossly offensive or which convey a threat”.

If we’ve got laws that result in the utterly ridiculous Twitter prosecution, but are unable to protect people from harrassment or abuse, then there is scope for reforming them to clarify the legal position.  If you read the wording of the Malicious Communications Act, you’d be a bit surprised that it doesn’t already help out.  It may well be that the law already provides a remedy but that Police and prosecutors are just too timid to apply it.

The limits of the law

There is always a danger that the technology and how it is used will move more quickly than the law can.  That has happened constantly since the invention of the World Wide Web.

It is no good politicians seizing upon whichever social network is the latest cause for concern and demanding that “something must be done”.  Friends Reunited, Bebo, chat technology in a variety of forms, Myspace, Facebook, ask.fm, Twitter, Tumblr, Snapchat, all have been the subject of some or other moral panic.  Too often, the panic has been founded on the naivety of people using them, or on misconceptions on the part of politicians about the effectiveness of technological legislation.  These panics have been going on for long enough now that, if things were as bad as we were promised they were at the time, society ought already to have collapsed.  The Brass Eye programme on paedophilia is thirteen years old and many people in positions of power appear to have learnt nothing much in the meantime.

I would welcome strengthening the law to grant protection to people where they are the victims of malice or threat from ex-partners in any form.  Why limit the reform to just a narrow area of harrassment?  The law in has always done a poor job in protecting people from harrassment, stalking, and breach of privacy by ex-partners.  Much as there is a big fuss about “revenge porn”, that issue is a drop in the ocean compared to more established problems.  Introducing a bespoke “revenge porn law” won’t do anything about them.

The statistics around “revenge porn” are virtually non-existent.  I’ve read and listened to interviews with victims and the inevitable horde of experts and lobby groups, and while there are a number of troubling anecdotes, there isn’t a lot more to go on.  Let’s have some proper research done so that we can understand the real extent of the problem.

Let’s also be clear about the biggest limit to the effectiveness of new laws – they cannot undo a wrong.  The law of murder does not restore the dead to life, and laws dealing with “revenge porn” are not going to delete every copy of every offending image from the world’s hard drives or servers.  The best way to avoid becoming the victim of a “revenge porn” sting is not to let the porn be created, or to create it yourself, in the first place.

Educate first, legislate later

The key is education, not legislation.  Make sure kids are aware of the dangers of creating content of any kind in the internet age, whether it’s nude pictures, inflammatory social media posts, naive musings on Tumblr, anything.  Make sure they are aware of some of the ways in which others may try to exploit them.  Once something is online, it may never go away.  The state cannot always save you from the consequences of your actions, or those of others.  It could do more to give you redress where you are abused, and it should do.

But fundamentally we also need politicians, policy makers, and anyone involved in framing legislation to understand digital media better.  Posting anything on the internet is the digital equivalent of graffiti on a wall on a busy street.  People are going to see it, and they are going to form an opinion about it.  Social networks are like a noisy pub where strangers are likely to overhear your conversation and may well butt in.  A certain sense of humour and proportion will help to keep tempers manageable, sure, but first users have to understand how the medium shapes peoples’ responses to each other.  It all rests on education, be that in schools, in the home, or by learning as you go along.  It includes a duty to learn from your mistakes and accept responsibility for your actions.

We already have far too many rushed laws on the statute book.  By all means sharpen up the ones we have to sort out this problem.  We may well be stuck with “revenge porn” as a label, sensationalist though it is.  But for God’s sake, save us from the bandwagon jumping of politicians desperate to launch or relaunch a career, or a paper like The Independent which is desperate for an issue to set it apart from the crowd, all of whom want bespoke legislation so they can take all the credit for achieving it.  Let’s have justice for victims, not kudos for campaigners.

 

 

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