The term ‘revenge porn’, also referred to as ‘intentional distribution of non-consensual porn,’ is a form of cyber sexual harassment. It occurs when an ex-partner or even a hacker distributes sexually explicit images of a person online without their authorisation.

This phenomenon is a growing problem in many parts of the world. Despite this, not all countries have enacted a law which explicitly makes revenge porn a criminal offence.

The USA and Spain both have specific laws which criminalize revenge porn. Other countries, such as the Netherlands, have not put a law into effect yet.

USA

As of 2018, 40 states and the District of Columbia have enacted laws that expressly criminalize revenge porn (1). In order for the crime to be considered revenge porn, most states require the content the perpetrator is publishing be sexual in nature, such as showing the victim’s intimate body parts or engaging in a sexual act.

While each state has different laws, most define revenge porn as any person, who aims to harass or annoy another who:

• Publishes or distributes electronic or printed photographs, pictures, or films that
• Show the victim’s intimate body parts and
• Illustrates that person engaged in a sexual act

Although 40 US states criminalize revenge porn, the offence has not become a federal offence yet. In November 2017, US senators Kamala D. Harris (D-CA), Richard Burr (R-NC), and Amy Klobuchar (D-MN), alongside Republican Jackie Speier (D-CA) introduced the Ending Nonconsensual Online User Graphic Harassment (ENOUGH) Act of 2017 to provide that it is ‘unlawful to knowingly distribute a private, visual depiction of an individual’s intimate parts or of an individual engaging in sexually explicit conduct, with reckless disregard for the individual’s lack of consent to the distribution, and for other purposes.´

However, this bill is now dead as it has not made it through the entire legislative process. The reintroduction of the same bill can occur during the next session.

SPAIN

With respect to Spain, a reform of Article 197 of the Spanish Penal Code (Ley Organica 10/1995) which regulates the crimes of discovery and disclosure of secrets applies to the crime of revenge porn. This 2015-reform reads as follows:

“If an individual, without the authorization of the person concerned, disseminates, discloses or transfers to third parties images or audiovisual recordings of the person concerned that have been obtained with the consent of the person at the place of residence or any other place away from the sight of others, he shall be punished with imprisonment of three months to one year or a fine of six to twelve months, when the disclosure would seriously undermine the personal privacy of that person.

The penalty shall be imposed in the upper half when the acts were committed by the spouse or a person who is or has been connected to the person concerned by an intimate relationship even when there was no cohabitation, when the victim was a minor or a person with disability in need of special protection or when the acts have been committed with a motive of profit.”

In addition to the specific provision in its Penal Code, Organic Law 15/1999 on the Protection of Personal Data allows the request for removal on a website of intimate content if it is inadequate or excessive. The Spanish Agency of Data Protection can erase data on a demand. The latter has the authority to request for content removal from European websites and can block access to certain content within Spain.

NETHERLANDS

Revenge porn as such is not (yet) explicitly a punishable offence. Nowadays, victims of revenge porn can claim libel (smaad or smaadschrift) and slander (laster). Although similar, publication makes it libel and written word makes it slander. Therefore, it would be more appropriate to talk about libel when revenge porn is at stake.

The following factors need to be taken into account:

• For there to be condemnation for libel (and slander), there must be an intention to damage the reputation of the victim. Sharing with that intention is already punishable as libel, but not specifically as revenge porn. According to Thomas van Vugt of AMS Advocaten (NL), that term must be well defined. Intention to damage the reputation means “sharing sexually-tinted visual material that you deliberately know the victim does not want it to be public”. It is irrelevant whether the person gave permission to make it. Only the intention of the image matters.
• The public aspect is also relevant. The judge has previously ruled that sharing with one contact or a private group does not amount to defamation.

In case of smaad, the legislator imposed a maximum penalty of six months in prison or a fine of the third category. According to Article 261 of Wetboek van Strafrecht for smaadshrift is the penalty higher

Of course, the final penalty depends on the circumstances of each case. For instance, the maximum penalty increases by 1/3 in case of smaadschrift against a public authority, a public body or a public institution. However, defamation almost always leads to a fine.

In many cases, there is also actual damage to reputation in the case of defamation. Nevertheless, in criminal proceedings, the criminal court will usually not award damages for reputational damage.

Consequently, it is possible to claim compensation for such damages in civil proceedings under Article 6:106 (b) of Dutch Civil Code.

In addition, Article 6:95 of Dutch Civil Code provides the following:

‘The damage that has to be compensated by virtue of a statutory obligation to repair damages (due by virtue of law), consists of material loss and other disadvantages, the latter as far as the law implies that there is an additional entitlement to a compensation for such damage.’

The causal relation and attribution are important factors provided for in Article 6:98 of Dutch Civil Code:

‘Only damage that is connected in such a way to the event that made the debtor liable, that it, in regard of the nature of his liability and of the damage caused, can be attributed to him as a consequence of this event, is eligible for compensation.’

Finally, Article 6:97 of Dutch Civil Code provides the estimation of damage. The court decides the amount of compensation the injured party should receive. However, this is difficult to establish, since every case is different and it is difficult to determine the size of the damage itself. Therefore, all particulars of the case must be known and must be placed alongside existing case laws. Nevertheless, modest amounts are generally awarded for non-material damages, both civil and criminal cases.

Although revenge porn is already punishable under the heading/criminal offences of libel or slander, it will become punishable as a separate offence. Indeed, the introduced proposal of Ferdinand Grapperhause, the Dutch Minister of Security and Justice, will modernize the law. The perpetrator will specifically be charged with the misuse of a sexual image. In addition, he or she will risk a maximum prison sentence of two years.

With revenge porn, the minister means sharing any form of nude images without the consent of the person concerned. In this way, Mr. Grapperhaus wants to make it clear that revenge porn is a criminal offence. The bill provides that the perpetrator must ‘have known’ that the visual material is ‘unlawfully’ obtained. The threshold is nevertheless too high because it lacks the wording that the perpetrator could ‘reasonably suspect’, says the Council. The law further states that the perpetrator intended to hit the victim by distributing the photos. However, that evidence is in practice ‘difficult to deliver’ according to the judges.

CONCLUSION

Creating laws to make revenge porn an explicit criminal offence is important for prosecuting perpetrators of revenge porn.

Most of the states in the USA have put a law into place to address the problem of revenge porn. However, the States has not made it a federal crime yet.

Spain has also a specific law which deals with revenge porn. The offence carries a sentence of three months to one year imprisonment or a fine of 6 to 12 months.

The Netherlands does not have an express provision on revenge porn yet. Instead, victims of revenge porn can claim libel or slander, which mostly ends up in a fine for the offender. A person can claim reputational damage in both criminal and civil proceedings.

Article written by  Alicia Hendricks.

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