Posted in New Legal Developments on 07 May 2019

In February 2017, Jody Cantillon wrote a piece on the non-consensual distribution of intimate images, or as it is more commonly referred to, “Revenge Porn”. The article concluded that although there is nothing wrong with a person sharing an intimate photo or video with a loved one, it is safer not to.
 
On the 1st May, 2019 the Government announced that they were working on a new Bill, banning “Revenge Porn”.
 
“Revenge Porn” 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 or “shared” with others by the other party in the relationship (“the Abuser”), but are in fact subsequently shared by 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.
 
The new Bill announced on the 1st May, 2019 is a very important and necessary piece of legislation which apparently is being dealt with by the Government as a priority. One cannot ignore the significant trauma such an offence can cause, not to mention the harrowing psychological injury which often follows. This Bill adds weight to a previously grey area. Placing the offence on statutory footing should act as a clear deterrent for an Abuser as they will now face criminal prosecution. It important to note however that the Bill has not been signed into law and is not in force at present.
 
Until such time as the Bill is enacted, 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.

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.
 
Thankfully, this latest Bill from Government means clarity is on the horizon along with, more importantly, justice for Victims. Those who consider sharing Revenge Porn will, finally, get the message!
 
Contact us at Cantillons Solicitors at +353 (0)21 -4275673 or [email protected] if you would like more information.

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


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