Posted in General Legal Tips on 03 February 2017

By and large the internet and the now, widespread use of smart phones is a good thing. It allows us to keep in contact with friends and family who have emigrated, publicise our businesses and communicate news to the world, in an instant.

However, like all good things, it can be distorted and turned into something evil.

One of these evils is what has become known as “Revenge Porn”. This arises where private and intimate photos or videos of a person (“the Victim”), which were exchanged between two parties in a relationship, with the presumption that they are not to be distributed, are “shared” with others by the other party in the relationship (“the Abuser”). This violation of privacy and common decency can have a devastating impact on the Victim’s life and has led to suicide.

While it is rare that such photos appear on Facebook or Twitter, it has happened.  Usually the Abuser publicises these photos or videos by sending them to other people via applications such as Snapchat or Whatsapp. The Abuser may also put the material on pornographic websites.

Snapchat allows a person to send a photo or video to another with the result that it appears on the recipient’s phone for a certain limited amount of time (e.g. ten seconds) and then disappears.  However, it is open to the recipient to take a photo of the screen, thus, enabling them to retain the photo.

Whatsapp allows for group messaging. If a photo is sent to a group, it is not only available to be seen by that group’s participants; it can be saved by anyone of them and then sent on to others.

There are now websites dedicated to Revenge Porn material. The material is uploaded and the Abuser may also submit a “profile” of the Victim. These websites may also allow users to comment on the material.

How do people protect themselves from this happening to them? The simple and the most reliable answer is; don’t take pornographic photos or videos. While there is nothing wrong with the taking of such photos or videos or the exchanging of them with a loved one, it is just safer not to do so.

It is also important to note that photos or videos can be taken by an Abuser without the Victim knowing. 

Also, the victim is entitled to believe that if they are sending such material to a loved one, that they will not be distributed to anyone else and will be kept private.

Should you find yourself to be a victim of Revenge Porn, what options are open to you? The unfortunate answer is not many.  Once something is on the internet or shared with someone else, it is almost impossible to have it deleted entirely.

There has been very little litigation before the Courts in Ireland on this topic which makes it hard to say what the outcome would be, if a case was brought here.

Advancements in the areas of social media and the internet have been too fast for the legislator in Ireland.

In England, Revenge Porn has been criminalised.

The Irish Law Reform Commission, in their September 2016 Report, called for new criminal offences to deal with Revenge Porn. In December 2016, Justice Minister Frances Fitzgerald received Cabinet approval to draft the new legislation which it is hoped will impose serious criminal sanctions on the Abuser.

As things stand at present, the following are some of the legal options which may be open to Victims:

Criminal Liability
It could be argued that the Abuser is guilty of Harassment, under the Non-Fatal Offences Against the Person Act, 1997. Under the 1997 Act, a person harasses another where “he or she, by his or her acts, intentionally or recklessly, seriously interferes with the other's peace and privacy or causes alarm, distress or harm to the other, and his or her acts are such that a reasonable person would realise that the acts would seriously interfere with the other's peace and privacy or cause alarm, distress or harm to the other”.

However, there must be an element of persistence on the part of the harasser and this could be difficult to prove in a Revenge Porn situation as it may be a one-off act of evil.

Civil Liability
There are some potential civil avenues open to the Victim, including:

  1. Seeking damages for the breach of the Victim’s right to Privacy and Confidence.

  2. Seeking damages for the breach of the Victim’s Data Protection rights.

  3. If the pornographic photo is a “selfie”, there is an argument that it could be copyrighted to the Victim and as such, any unauthorised distribution of the photo would be a breach of the Victim’s rights.

  4. Seeking an Injunction requiring the Abuser to take down the photo/video from any sites on which it was posted by the Abuser.

  5. Seeking an Injunction to prevent further distribution of the photo/video.

  6. There may also be potential for bringing an action against the host of a website who publishes the material. However, this is a bit of a legal minefield.

Should a Victim become aware that intimate photos of them are on a specific website, they should immediately contact the Website Administrators notifying them of the offending material and ask that it be removed immediately.  The Website Administrators must then react and assess the material and decide whether it should be taken down.

In conclusion, although there is nothing wrong with a person sharing an intimate photo or video with a loved one, it safer not to.

Jody Cantillon is an Associate Solicitor with Cantillons Solicitors, Cork.

Contact us at Cantillons Solicitors at +353 (0)21 -4275673 or info@cantillons.com if you would like more information.

*In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.
 


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