The practice of revenge pornography

Running Head: CYBER CRIME
REVENGE PORNOGRAPHY
Name of the Student
Name of the University
Author’s Note

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Revenge pornography means the act of distribution and publication of sexually blunt
images and videos of persons including men and women and others without their permission.
According to Citron and Franks 2014, it has been explained as the means of sharing videos and
images of people engaging in sexual activities without their permission. Such sexual activities
may include any form of intimate relationship and video or image may be made with or without
the consent or knowledge of the person. The material with such image or video may be obtained
for the purposes of blackmailing or coercion to continue the relationship or a form of revenge for
not continuing the relationship.
The practice of revenge pornography has been explained as a form psychological abuse,
domestic violence and also sexual abuse depending upon the facts and circumstances of the case.
Bates 2015 has explained in her thesis “Stripped”: An Analysis of Revenge Porn Victims’ lives
after Victimization’ has explained that the such act aims to abuse the person by targeting their
personal space and intimacy and fear of losing integrity leading to psychological abuse, domestic
violence and sexual abuse. The aim of revenge porn is only to humiliate and intimidate the
person involved in the image or video. As Bazelon 2013 has mentioned, the act of revenge is
often misused with the act of non-consensual pornography and distributed for the purposes of
seeking money or profitable interest.
Victims of revenge pornography are the ones who require mental and legal support.
Instead the distribution of such videos expose victims to workplace discrimination and cyber
stalking accompanied by public shame and physical attack due to clarity of identity present in the
video. Given the bad publicity of the person’s reputation, the victims tend to lose their jobs and
social status (Citron 2013).

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Revenge pornography has been held illegal and a punishable offence by many
jurisdictions by way of legislative enactments including Israel, Germany, United States, Europe,
Canada and Australia. Australia passed a law applicable to Commonwealth in 2018. However,
the states of Australian island including Victoria, Queensland, New South Wales, Northern
territory and so on have also criminalized the act of revenge pornography. Australian law also
have civil provisions in this regard.
Based on the national study commissioned by the Australian Office of the eSafety
Commissioner, 2017, it has been found out that 23% respondents were reported being a victim of
at least one form of revenge pornography. Most common allegations among the respondents
were that of nude or sexual images which were taken without their consent and with 20% of the
respondents reporting the incidence. The survey also resulted that 11% of the respondents
reported of distribution of their explicit photos or videos to other people without their consent.
However, the survey has indicated that 99% of the respondents experienced threat for
distribution of sexual explicit images and videos including their naked pictures and videos
without their consent.
The survey reported that men and women reported similar ratio of victimization.
However, some communities are more vulnerable to such acts and threats than the others like the
Australian Aboriginal and Torres Strait Islander people, people with disability, Lesbians and
Gays and Bisexual people, young people between the ages of 20-29.
The study has formed the basis to establish that 10.1% of the respondents accepted to
have been involved in self-disclosed perpetration of Image-Based Sexual Abuse (IBSA)
behavior. Approximately 9% accepted to have clicked explicit videos and pictures of people

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without their consent. In addition, 7% respondents have confessed to have been involved in
IBSA and have distributed pictures and videos of people without their consent. Further, 5.4%
people have also agreed to have threatened people for the sharing of such pictures and videos for
some other gains.
Analyzing the ISBA perpetration behavior of the respondents, it can be explained that
men have reported the cases of perpetration more than the women. In such analysis, it has been
found that perpetration in cases of women is highest between the age of 20-29 and 30-39 years.
However, in case of men, the perpetration has been found ranging between the age of 16-19
years and 20-29 years. The perpetrators in all these cases, were mostly found to be family
members, a friend or a distant relative or most often a previous partner or spouse. Therefore,
these findings lead to the inference that the Australian community is in dearth of laws relating to
prohibition of IBSA and should take effective steps to recognize the problems and enact effective
laws and legislations for prohibition of such IBSA acts and provide deterrent punishment for the
same. Invasion of someone’s privacy and using it to humiliate him or her is immoral as well as
unethical and should imply strict punishments for anyone committing such act.
Along with the respondents, there are stakeholder participants who provided extensive
support for the recognition and enforcement of legislations in Australia with respect to IBSA and
the aim the criminalizing such act. Detailed analysis of the report explained that the majority of
respondents supported the idea of enactment of federal and state laws for criminalizing IBSA.
Thus, participants stated that the criminal law shall be enacted in a way to provide clear message
to the society that such immoral behavior shall not be tolerated and the harm caused by such act
shall be relieved by criminal as well as civil suits.

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The laws for criminalizing the act of IBSA has been enacted with the definition
constituting such act. The elements of the act according to the definition includes that firstly, the
image or video can be made consensually as well as non-consensually. Secondly, such video or
image shall be stored or possessed with the intent of harm. Thirdly, actual harm has been caused.
Intent of harm means any kind of unlawful act associated with the particular image or video
including distribution or publication or even threat to distribute is enough for the offence to be
constituted. However, proof of harm is one element which is though not explicit but is inclusive
of requirement of the intent of harm. Actual harm caused is the last essential element of the
offence stating that such threat or actual distribution has been in exchange of favor and such
favor shall establish the actual harm. Even in threat to distribution, the favor asked in exchange
of such video or image shall constitute the harm.
Australian law has three schemes criminalizing the act of revenge pornography that are
parallel to each other in application. they are Civil Suits, Criminal law and the Civil Penalties.
Wilson vs. Ferguson (2015) has formed the landmark judgment for the establishment of
law against non-consensual distribution of sexual images or videos on digital media. The case
was argued on the grounds of equity of breach of confidence and tort principles as established
under Giller vs. Procopets (2008). The statutory laws of South Australia, new South Wales,
Australian Capital territory, Northern Territory, Queensland, and Western Australia including
Commonwealth have all been amended to criminalize the act.
In 2013, South Australian Parliament had passed the Summary Offences (Filming
Offences) Amendment Act (2013)(SA), under section 26C, which undermines specific
provisions to ensure criminal liability to be imposed upon commission of such act. In 2016, a

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further amendment was made to include the criminal liability upon the act of threat to distribute
such sexual explicit image or video.
In 2014, Parliament of Victoria had passed the Crimes Amendment (Sexual Offences and
Other Matters) Act (2014) (Vic) has made criminal provisions against the act of revenge
pornography.
In 2018, Parliament of Commonwealth of Australia passed Enhancing Online Safety
(Non-Consensual Sharing of Intimate Images) Act (2018) (Cth) which specifically embarked the
provision against revenge pornography at the national and central scale. The Act was passed to
enforce civil penalties scheme. However, section 474.17A of the Criminal Code Act (1995) (Cth)
has also mentioned about the criminal liability for distribution of a private sexual image offence.
Under the scheme of civil penalties, Australians have the right to report the posting or the
threat to posting of sexual images and videos without consent to the Government Office of
Australia of the eSafety Commissioner. The eSafety Commissioner has the rights and powers to
receive and investigate such matters and issue take-down notices along with the enforcement of
civil penalties against the person and corporation uploading the image or video (Section 19C of
the Commonwealth Act). Section 44Aof Enhancing Online Safety Act (2015) (Cth) lays down
any person engaging in the distribution or publication of sexual explicit image or video without
the consent of the person identified in such image or video shall amount to civil penalty. The
section also mentions the powers and rights of the eSafety Commissioner to issues take-down
notices and other actions against such offender. However, the powers of the Commissioner also
extends against the end-users and hosting service providers. Civil penalties for such offences has

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been laid down as fine up to A$105,000 for individuals and A$525,000 for corporations (Porter
2018).
There are a number of challenges faced by the stakeholders while implementing and
enforcing the legislations relating to the aspect of IBSA. These are: blurred boundaries of
jurisdictions; procurement of sufficient evidence to prove the claim; restrictions of resources as
IBSA cases are subjective in nature; lack of knowledge of technical matters related to digital
media and its system; lack of awareness among people regarding the legislations to protect them
from such offences. The challenges are derived from the low rates of prosecution in Australia.
This derived data are contradictory to the survey that was analyzed stating 23% respondents have
been a victim of IBSA. Thus, it shows the ineffectiveness of the existing legislation which
establishes a direct connection between the effectiveness and challenges of the legislation.
It can be concluded that along with the responsibility of the government to protect its
people against such offenses, it is also the duty of the internet intermediaries to respond to and
prevent such offences. Such intermediaries should take effective steps to improve the reporting
mechanisms for the victims. They should also ensure that the content can be taken down or
removed upon action depending upon various technologies like match making procedure. There
are many online sites which accept such images and videos encouraging and supporting
distribution of these content amounting to IBSA (Powell & Henry 2015, 2017). These service
providers should take larger steps to prevent IBSA and promote peace.

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REFERENCES:
"Civil penalties scheme". Australian Government Office of the eSafety Commissioner.
Retrieved 25/08/2019
Citron, Danielle Keats; Franks, Mary Anne (2014). "Criminalizing Revenge Porn". Wake Forest
Law Review. 49 (2): 345–392.
Danielle K. Citron, "‘Revenge porn’ should be a crime", CNN Opinion(Aug. 30, 2013).
Henry N & Powell A 2015a. Beyond the ‘sext’: Technology-facilitated sexual violence and
harassment against adult women. Australian and New Zealand Journal Criminology
48(1): 104-118
Henry N & Powell A 2015b. Embodied harms: gender, shame, and technology-facilitated sexual
violence. Violence Against Women 21(6): 758-779 Henry N & Powell A 2016. Sexual
violence in the digital age: The scope and limits of criminal law. Social & Legal Studies
25(4): 397-418
Henry, N., Flynn, A., & Powell, A. (2019). Responding to'revenge Pornography': Prevalence,
Nature and Impacts. Criminology Research Grants Program, Australian Institute of
Criminology.
s. 19C Enhancing Online Safety Act (2015) (Cth)". Australasian Legal Information Institute. 1
September 2018. Retrieved 6 March 2019

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A Current Affair 2017. ‘Degraded, dehumanised’: Laws close gap as revenge porn rates double.
9 News. 22 November. https://www.9news.com.au/national/2017/11/22/18/24/revenge-
porn-rates-double-aslaws-close-gap
Australian Bureau of Statistics (ABS) 2012. Personal Safety Survey. Canberra: Australian
Bureau of Statistics
Giller v Procopets [2008] VSCA 236 (10 December 2008), Court of Appeal (Vic, Australia).
Wilson v Ferguson [2015] WASC 15 (16 January 2015), Supreme Court of Western Australia
Bates, Samantha (2015-08-04). "Stripped": An analysis of revenge porn victims' lives after
victimization (Thesis). Simon Fraser University. Retrieved 2016-01-23.
Parliament of Australia (16 August 2018). "Enhancing Online Safety (Non-consensual Sharing
of Intimate Images) Act (2018) (Cth)". Australian Government Federal Register of
Legislation. Retrieved 25/08/2019
Porter, Christian (16 August 2018). "New laws to prevent image-based abuse one step
closer". Attorney General for Australia
Emily Bazelon, Why Do We Tolerate Revenge Porn?", Slate (Sept. 25, 2013)