1709 Blog: for all the copyright community

Wednesday, 29 April 2015

Revenge porn - the need to legislate between privacy and copyright?

You may rememer the case between Tulisa Contostavlos (who shot to fame as a member of hip hop group N-Dubz and landed a high-profile role as a judge on the X Factor talent show) and her ex boyfried  Justin Edwards, who posted a sex tape of the couple  on the internet. In July 2012, in the High Court in London,Tulisa accepted the "sincere apologies" from rap artist Edwards, who initially denied being responsible for the tape appearing on the web. Her solicitor, Jonathan Coad, told Mr Justice Tugendhat that the invasion of Miss Contostavlos's privacy "was of the most severe kind imaginable" and that "She suffered and continues to suffer very serious distress at this wholly unjustified and unlawful interference with her rights". Mr Justice Tugendhat granted Tulisa an interim injunction, prohibiting anyone from 'using, publishing, communicating or disclosing all or any part of the film to any other person'. Whilst injunctive relief was granted for the breach of her privacy, and most of the videos were blocked and removed from the internet, Ms Contostavlos had to bring further actons, in 2013 she accepted £42,500 damages from news website TNT over its wrongful publication of a still from the sex tape. Its still out there of course, one of the curses of the digital age. All well and good in the UK then, with Tugendhat J stating: "For years before the passing of the Human Rights Act 1998, the court heard applications for injunctions based on the law of confidentiality, as it was then understood, to restrain the publications of details of their sexual lives… Details of a person’s sexual life have thus been recognised for very many years as high on the list of matters which may be protected by non-disclosure orders. It has also long been recognised that photographs are more intrusive than a verbal or written description. In the case of intrusive and intimate photographs of the kind in question in this case there is no real prospect of a defence of public domain”.  In February this year s33-35 of the Criminal Justice and Courts Act 2015 added a new "revenge porn" provision in thr United Kingdom, meaning those who post private, sexual images of someone without consent and with the intent to cause distress will now face up to two years in prison, with the Act extending to images sent on social networks, including Facebook and Twitter, and those sent by text after April 23th 2015. 


In Denmark, 23-year-old Emma Holten was the victim of "revenge porn" after Emma's email was hacked and nude photos, originally taken for her boyfriend, were subsequently leaked across the internet. After having to suffer a stream of horrendous online abuse and threats from complete strangers, she devised a retaliation plan: to have a series of consensual nude portraits shot by photographer Cecilie Bødker Jensen to create images portraying herself as a human being, not a sexual object, and Holten personally spread them (see above), along with an essay, and a video which you can see on the Guardian. But that's not something everyone can or wants to do. 

So the headline "Woman forced to copyright breasts to fight revenge porn" caught my eye. It's not an entirely accurate strapline, but it does explain the steps one American woman went to to protect her privacy, where the act of publishing nude pictures of a non consenting (ex) partner is only a crime in 17 of the U.S.A.'s 50 states.  California made revenge porn illegal in 2013, although as  a misdemeanor, which can, where guiilt is proven, result in up six months in jail and fines of up to $1,000. There are other charges that can be brought: readers may have recently seen that 28 year old Kevin Bollaert, boss of the UGotPosted revenge porn website was convicted by the state of California on 27 felony counts, including charges of extortion and identity theft. He was sentenced to 18 years in prison. in February this year, another 28 year old, Hunter Moore, pleaded guilty to charges of computer hacking and agravated identity theft in relation to his revenge porn site IsAnyoneUp?  He also faces a prison sentence. But in other cases (and states) the victim can be left clutching at straws. 

In 2014 in New York state, Ian Barber, 29, who tweeted nude photos of his ex-girlfriend to her sister and employer has had all charges against him thrown out: Barber was charged with harrassment - but he didn't communicate with the victim during the alleged crime; He was charged with dissemination of unlawful surveillance, but he obtained the material legally; He was charged with publicly displaying offensive sexual material, but New York law doesn't consider Twitter as "public display." Judge Steven Statsinger said "The Court concludes that defendant's conduct, while reprehensible, does not violate any of the criminal statutes under which he is charged". The case reminded me of the recent decision by the New York Supreme Court Appellate Division who ruled in favour of artist Arne Svenson, who used a camera with a powerful long lens to take pictures from his lower Manhattan residence of people in apartments in a neighboring building. The people who were being photographed had no idea this was happening and images included their children -  and the pictures were then used as part of an art exhibit called "The Neighbors." The ruling says: "This case highlights the limitations of New York's statutory privacy tort as a means of redressing harm that may be caused by this type of technological home invasion and exposure of private life. We are constrained to find that the invasion of privacy of one's home that took place here is not actionable as a statutory tort of invasion of privacy pursuant to sections 50 and 51 of the Civil Rights Law, because defendant's use of the images in question constituted art work and, thus is not deemed "use for advertising or trade purposes," within the meaning of the statute" adding "undoubtedly, like plaintiffs, many people would be rightfully offended by the intrusive manner in which the photographs were taken in this case. However, such complaints are best addressed to the Legislature—-the body empowered to remedy such inequities." 

Charlotte Laws, whose daughter Kayla's computer was hacked to obtain a single nude topless phot 'selfie', mounted a two year investgation into Hunter Moore after Moore ignored her written request to remove the photo under the provisions of the Digital Millennium Copyright Act despite copies sent to Moore's attorney, his hosting service, Facebook and to his internet security company. It was her investigation that sparked the FBI investigation that brought Moore down.

In the current case, CNN Money explains that “Hilary” (a pseudonym) was in a long-distance relationship that, like many in the 21st century, involved some nude selfies and videos. And like many relationships, it came to an unhappy end. But then it got worse: her ex posted those photos online to humiliate her: “[My ex] continually asked [me] to send photos, and it was uncomfortable at first. But I figured, ‘You’re in love so why not?’ They were very intimate,” she said. “There were a lot of topless photos, a lot in bed, I guess simulating sexual acts.”

CNN also explain that there is slow progress in the U.S. because "Writing new laws is difficult because of fears that sweeping legislation would infringe on First Amendment rights. Websites that host these photos often resist demands to remove images, claiming free speech protection under the First Amendment. So victims, despite their distress, have to be creative - and one route is to use copyright: In most cases, the first course of action is filing a takedown notice under the Digital Millennium Copyright Act. If the pictures were taken consensually, and the website refuses to remove the images, suing for copyright infringement is a next step - and remember these are selfies - so owned by the subject - but lets be quite frank, they are intimate and  whilst registering a copyright isn’t difficult it can be complicated and time-consuming. And you have to give the U.S, Copyright Office a copy of the material you want protected. When it involves intimate pictures, that means exposing yourself all over again — this time to the government. As "Hilary" explains “I thought, well no, this must be wrong … they’re forcing me to disclose them further when that’s what I was trying to prevent.” If you didn't take the picture but your ex-partner did - a whole new layer of complexity is added - as your ex is probably the author and owner of those snaps.

All told, Hilary made three different registrations for a total of over 100 images. She tried to supply stills from the videos instead of the actual videos as part of her application but was denied. She ultimately chose not to copyright the videos.

Hilary’s pictures were not put in the Library of Congress (a request for special relief can prevent that), but her real name and the titles of the images do appear in its public catalogue. One of the titles refers to her lingerie. The good news is that she succeeded - to a degree - and the move has worked, to an extent:  but as all of thse victims realise, whilst images and videos can be removed from some websites, its never really gone in the digital age and copyright is surely not the best tool to protect privacy. 

Image: http://www.endrevengeporn.org/welcome/

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