Last week’s report of the House of Lords Communications Committee has once again highlighted the increasing problem of “revenge porn”.  Revenge porn arises when persons, often ex-partners, post sexually explicit pictures and videos on websites and social media networks to try to embarrass and humiliate the ex-partner following a break-up.

We have addressed the question of online abuse and harassment in a previous blog – “Anti Social Media: how the Law can Tackle Online Abuse and Harassment

Criminal offences

The House of Lords Committee came to the view that it was not necessary to change the law to deal with this on-going problem.  The Committee stated that existing criminal laws, many of which pre-date the advent of social media, were “generally appropriate” to deal with instances of revenge porn, trolling, cyber-bullying and other online offences.  The Committee highlighted the powers of the criminal authorities to pursue prosecutions under various statutes including the Protection from Harassment Act 1977, the Malicious Communications Act 1988 and the Communications Act 2003.

Legislation specifically criminalising revenge porn exists in several US States and legislation allowing for jail sentences for publication of explicit images of ex-partners without consent has been supported by several MP’s and peers.  The Justice Secretary, Chris Grayling, has recently stated that the Government would begin “serious discussions” about how the law could be changed to ensure that people are punished for posting such material online.

Whilst reaffirming that the existing criminal law was appropriate, the Committee felt that the Director of Public Prosecutions should provide more clarity as to what constitutes a criminal offence under the Communications Act 2003 and the Malicious Communications Act 1988. 

Civil remedies

Revenge porn and similar online harassment can be addressed, with or without the civil courts’ assistance.

Responsible search engines and websites such as Google, Facebook, Twitter and YouTube have Terms of Use which are intended to stop online harassment, pornography and publication of other offensive material.  Because these search engines and websites are based in the US, it is sometimes difficult to make direct contact with relevant compliance personnel responsible for overseeing use of their websites.  Once notified that there has been a breach of their Terms of Use, steps are often taken by the search engine or website to remove offending material.  The fact that criminal offences may have been committed in the local jurisdiction can also be notified to the relevant websites to seek to put additional pressure on them to remove offending material. 

In England, civil remedy is also available under the Protection from Harassment Act 1977.  Any person responsible for a course of conduct which can be regarded as harassment, including, posting online sexually explicit pictures and videos of a former partner, may be the subject of an injunction preventing continuing publication and to ensure that such material is removed.  Damages are also available under the Act and costs may be recovered.

English Privacy and Data Protection laws have also been applied to prevent publication of information or material which is regarded as private or else contrary to data protection laws.  In appropriate cases, rapid injunctive relief to prevent continuing publication may be obtained through the Court.

Although not an instance of revenge porn, Max Mosley has recently commenced a new action against Google UK to seek to remove images appearing against his name when searched on Google.  This follows judgment obtained by Mr Mosley against The News of the World in 2008 for invasion of his privacy in publishing pictures and a video of him at a private sex party at his Chelsea flat.  Mr Mosley now seeks to enforce that judgment against Google UK by claiming that Google has misused private information about him and is in breach of the Data Protection Act 1998.

Commentators have also expressed the view that an additional means to seek to prevent revenge porn and online harassment may arise as a result of the recent European Court of Justice “right to be forgotten” ruling against Google Spain.  It will be interesting to see whether this ruling itself leads to further applications to remove offending material from search engines and websites and the extent to which Google can be regarded as a publisher, which it disputes, and having to take responsibility to police the internet.

The House of Lords Communications Committee’s report is a welcome confirmation that existing English criminal and civil laws provide a range of remedies available to persons who are the victims of “revenge porn” and that judicious use of available civil and criminal remedies may go some way to stop this increasing trend.