Yesterday’s news carried reports that the government may act to criminalise ‘revenge porn’. This is when an angry, jilted person posts private, explicit photographs of their ex-lover online.
At the moment, those who have been exposed in this way can try suing for a breach of privacy in the civil courts, but it’s not currently a criminal offence. For something to constitute ‘harassment’ it has to be a pattern of behaviour, which does not capture the one-off posting of consensual photographs.
This is clearly a new problem brought about by technological advances: now, everyone has a phone in their camera, —or, is it a camera in their phone?
Charlotte Proudman at The Independent wrote a feature on the issue and asked me to comment from a free expression point of view:
Dissenting voices warn against unnecessarily curtailing freedom of speech. Robert Sharp, Head of Campaigns at English PEN, an organisation supporting freedom of expression, cautions “a rushed and badly drafted law could end up criminalising a wider range of expression, such as memoirs, ‘kiss and tell’ journalism and even novels.”
I think I should make clear that I’m not set against any legislation at all on this issue. I actually think that the criminal law may have a part to play in solving yet another power imbalance between men and women. It is just that laws that criminalise a form of expression (because that is what this is, the posting of pictures and video to the Internet) should not be rushed and should always be drawn as narrow as possible, with no room for expansion or ambiguity.
I remember the legal action suffered by Amanda Craig: an unsympathetic character in her novel the story wore the same pair of shoes as her ex-boyfriend… so the boyfriend (also a prominent journalist) sued for libel! There is no suggestion that Craig made the connection consciously and deliberately, but authors often joke about ‘revenge novelisation’ to get back at people they have fallen out with. We need to be careful this sort of thing is not captured by a ‘revenge porn’ law.
Tracey Emin famously embroidered the names of ex-lovers onto a tent, so there is a danger that contemporary art might fall foul of such legislation too.
A separate question is whether these laws will be able to keep up with technology. There is a chance that the way the law is written will leave a loophole for some future photo sharing app. And what about cases where the angered person draws a picture, or PhotoShops the face of their revengee onto the body of a porn star? I’ve seen plenty of pictures over the years depicting Tony Blair in a sexual encounter with President George W Bush—angry pornographic images can be political speech, too.
Hmm. It seems fairly simple to me, that this has got absolutely nothing to do with free speech, and everything to do with consent. Creating, sharing or publishing naked/intimate photos of a person without their permission should be a criminal sexual offence in its own right. Not because it might be harrassing or libellous or hate speech or incitement to commit an offence, or any of the other reasons free speech might be curtailed, but purely because sexual consent is a thing (and the people who share such images know this very well, otherwise sharing them wouldn’t count as revenge). Sharing these images is not “expression”, it is sexual violation, which is a very different thing.
It’s therefore difficult to see how such a law could accidently criminalise any form of expression.Tents, novels, and autobiographies that don’t include explicit photos without consent are nothing to do with it.
As for photoshopping, there’s a clear difference between a Blair and Bush image, which by its nature is clearly satire because it could never be mistaken for a genuine photograph, and photoshopped-ex images which are presented as genuine, and indeed, might reasonably be assumed to be so. Wasn’t there a female celeb who successfully sued a tabloid recently for publishing as genuine a photoshopped sexual image of her?
Such a law would not be a restriction on free speech, but a restriction on sexual abuse and exploitation. Conflating these two quite separate issues has a long history, but needs to be called out when it happens.
Spreading pornographic material of a person, requires that persons consent. That’s all there should be to it.