Revenge Pornography: Notice and Takedown

Herewith first impressions of the Government’s proposal to criminalise “Revenge Pornography” since, if it is passed, this will be another type of material that those offering web or other publishing services for user generated content will need to include in their notice and takedown processes. Comments welcome, especially if you think there’s something I’ve missed.

The proposed amendment to the Criminal Justice and Courts Bill would ensure it is a crime (in some cases it already is) to “disclose a private sexual photograph or film” without the consent of the subject of the photograph and “with the intention of causing that individual distress”. There have been a number of recent instances of people maliciously placing such images on social media, web and other hosting services, so it’s not surprising that the Government want to ensure that when that happens, the hosting service removes it promptly when they are notified.

However unlike other notice and takedown processes (copyright, defamation, etc.) that is slightly complicated by the fact that intent to cause distress is an essential component of the proposed crime. A hosting service that didn’t remove material on notification might be able to claim that it had no intention to cause distress, so was innocent of any crime. I suspect that’s why the amendment includes a second version of the crime, which can only be committed by service providers (potentially including those based outside England and Wales). It’s not at all clear to me from the drafting whether the intent to cause distress still applies to that one, but I can’t think of any other reason for including it.

The offence would, however, still be covered by the normal immunities under the E-Commerce Directive. Until a hosting provider has actual knowledge that specific information is a private sexual photograph or film, disclosed without consent and with intent to cause distress, they cannot be guilty of the offence. Once they are informed of those facts, the hosting provider must “expeditiously” remove the information (or disable access to it) if they want to avoid the possibility of committing a crime.

The amendment may need fixing in one other area, though, since although there is a defence if a film or image is disclosed for purposes related to crime there doesn’t seem to be an equivalent defence for other disclosures required by law, for example in the context of civil cases or even under the Freedom of Information Act. I hope that will be addressed in the Parliamentary debates.

And note that the use of “private” in this Bill involves yet another new definition of that term: “A photograph or film is ‘private’ if it shows something that is not of a kind ordinarily seen in public”. So the fact that an image may have already been widely disseminated to the public doesn’t legitimise its malicious use.

[Apologies for the lack of direct references to the text, but there are no section or line numbers in the current draft I can refer to. The main offence appears below the text “After Clause 29” and the Annex for service providers can be found by searching the text for “service providers”]

[UPDATE: SCL have managed to extract just the revenge pornography parts of the Amendment – thanks]

By Andrew Cormack

I'm Chief Regulatory Advisor at Jisc, responsible for keeping an eye out for places where our ideas, services and products might raise regulatory issues. My aim is to fix either the product or service, or the regulation, before there's a painful bump!

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