Using copyright to fight revenge porn

31 Mar 2015 by Philippa Warr on Content regulation

Law firm K&L Gates is using copyright law as part of the Cyber Civil Rights Legal Project (through which it seeks to represent clients who are the victims of revenge porn). In 2014 The Atlanticasked whether copyright law was "our best weapon against revenge porn". This is an imaginative approach to an increasingly pervasive and troubling abuse of privacy in the networked information society. But at best, the invocation of copyright law provides an imperfect solution to a damaging problem. Let's look at the advantages and drawbacks of copyright law in the fight against revenge porn.

Revenge porn is the act of posting nude or sexually explicit photos or videos online without that person's consent, usually as an act of revenge after a relationship ends, hence the name. The images – predominantly of women – can end up on porn submission sites sometimes accompanied by the victim's contact details and personal information.

The repercussions for the victims are serious and can include harassment, problems finding or maintaining employment and can cause difficulties with current and future relationships. A 17-year-old from Brazil reportedly committed suicide after a sex tape involving her was posted online. In 2014 charities were reporting increases in complaints about revenge porn and New York-based lawyer Carrie Goldberg - who specialises in revenge porn cases - reported being inundated with calls from victims aged 13 to 40.

In light of the increased availability of self-generated sexual content involving young people a study by the Internet Watch Foundation in 2012 looked at the extent to which control over sexual content is lost once it is posted online. An updated version of the study was published in March 2015 and found that 100% of images included in the study featuring children aged 15 or younger had been taken and reposted from their original location. These original locations included social networks and mobile phone apps. That study doesn't directly deal with revenge porn but highlights how easily that type of content is recirculated and how swiftly the author can lose control of it when it's posted online. In terms of specific revenge porn information, according to information released on 2014, UK police forces reported that an 11-year-old girl had been the victim of revenge porn. The report adds that of the 149 allegations, only 6 resulted in a caution or charge.

Some countries and states have implemented laws which specifically ban revenge porn or at least have privacy laws which appear to encompass it. Under Israeli law, being found guilty of posting sexually explicit media without the victim's knowledge or consent is punishable by up to five years in prison. In the United Kingdom, an amendment to the Criminal Justice and Courts Bill means that it is an offence to disclose a private sexual photograph or film without the participant's consent and with the intention of causing distress.

How does copyright law come into play?

Many of the explicit shots are selfies (an online survey by the Cyber Civil Rights Initiative found that up to 80% of revenge porn victims took the pictures themselves). That means they were taken by the victim who thus owns any copyright of the shot. In arguing that a site hosting the image is infringing the victim's copyright it may be possible to get the image taken down. In this situation it would be necessary to check on where the web hosting service is based. For example, if it's a US-based web host a Digital Millennium Copyright Act takedown notice can be issued requiring the site to remove the offending content (within a reasonable timeframe).

In a jurisdiction where copyright laws exist but where legislation is not necessarily clear on the revenge porn issue, the idea that it offers a way to get the offending material removed is undoubtedly appealing. Copyright law, it seems, is an imperfect way of dealing with revenge porn.

Firstly it would cover images taken by the victim but not those taken by a third party who isn't objecting to the usage. A few arguments on blogs say that the victim could be considered a joint author, even if they didn't take the image, but that's not a concept a person affected by revenge porn can rely on.

Another problem it that – to go back to the DMCA example – takedowns are issued for specific instances of media. What that means, is that there is no guarantee that the image will not simply be uploaded again, requiring another takedown notice.

A third problem (although this also applies to pieces of legislation which deal with revenge porn such as that in the UK) is that contesting the images based on copyright means they have already been published and, potentially, downloaded or viewed along with any accompanying personal information.

The most interesting development on the latter front is a German court ruling which stated that a man must delete erotic photos of his ex-partner even though, as the Guardian reports, "her ex-partner had to date shown no intention of reproducing the pictures or putting them online". That case is doubly interesting because not only does the ruling preclude the publication of the images in the first place but because in this case the idea of the plaintiff's right to one's own image outweighed the defendant's intellectual property.

Copyright as mitigation and assistance

Essentially, copyright laws can provide a situation-specific way to try and mitigate the damage revenge porn can cause. They are unable to provide a comprehensive solution to a complex problem but can offer a little assistance particularly when other legislation falls short. Copyright laws being used in this way are an interesting phenomenon but no substitute for specific legislation or for rulings which establish how existing law applies in these situations.

For further information on dealing with revenge porn and non-consensual pornography you can visit End Revenge Porn to find out about their campaign (US and non-US). There are also various national charities and support groups to which victims may turn – in the UK there is the newly launched Victims of Internet Crime helpline as well as Women's Aid and the National Stalking Helpline. In terms of making content less easily available, Google has a form you can fill in to request particular URLs be removed from its search results. That will not get rid of the content but it can make it harder to find.

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