We can do more to fight ‘revenge porn’
It’s a sordid crime that seems to pique interest only when celebrities are involved. Revenge porn is back in the spotlight, highlighted by Rob Kardashian sharing pornographic images of his former partner, Blac Chyna. The sorry tale looks as if it will create tabloid fodder for months to come, as it seems destined to head to the courts in the United States.
Closer to home, former comedian and photographer Ren Bostelaar was recently ordered to abide by a peace bond for one year after sharing photos and information about several women he knew online, which led to them being further harassed for more nude photos. Incredibly, his lawyer painted Bostelaar as just another victim in the affair, saying that “he too has certainly suffered” from the subsequent online shaming, including losing his job.
The real suffering in revenge porn, though, is experienced by ordinary people who still struggle to find meaningful remedies when they fall victim to this crime.
Canada has had a federal law on revenge porn, cyberbullying and related offences since 2015, called the Protecting Canadians from Online Crime Act. It was adopted in the wake of the tragic deaths of Amanda Todd and Rehteah Parsons, the teenage girls who both committed suicide several years ago after being subjected to online bullying and abuse.
The first person prosecuted under the new law was found guilty last year of posting naked photos of his ex online after she confessed to cheating on him, and was sentenced to 90 days in jail.
The criminal law can deal with the worst cases. But the sobering reality is that those seeking restitution can still face a long, uphill battle to restore their dignity and receive some form of compensation for this type of online harassment.
The issue of revenge porn can be a thorny and complicated one, stemming in part from the feeling among many (mostly older) people that what happens online is fundamentally different from what occurs “in real life” — a distinction that increasingly makes little sense as so much more of our lives are lived online.
There are ways to try to remove disturbing images from websites, but that is a difficult process and can often turn into a case of online whack-a-mole, another reason victims can feel helpless when faced with this crime.
One way to give victims more hope is to make it easier for them to pursue a civil, rather than a criminal, remedy for being cyberbullied or subjected to revenge porn.
In Canada, Manitoba is showing the way. It is the first province that has created a specific revenge-porn law that allows a victim to sue for restitution. Called the Intimate Image Protection Act, it came into effect early last year and applies to anyone who can be identified in a photo or video, appearing nude or engaged in sexual activity, taken in circumstances where they would have a reasonable expectation of privacy.
Under the law, Manitobans can sue perpetrators in civil court if they share or threaten to share intimate images without consent. The province also invested $175,000 in the Canadian Centre for Child Protection, a Winnipeg-based organization that works to protect young people by helping families to remove unwanted sexual images from social media and online sites.
Alberta plans to bring in a similar law, and other provinces should consider following suit. A specifically codified response to cyberbullying and revenge porn can serve as both a deterrent and as a method to make it easier for those seeking restitution. Manitoba’s law can serve as a model for other provinces.
In many jurisdictions, the problem is being dealt with under existing civil laws. In Ontario, the offence is covered by a privacy tort, or civil offence upholding a person’s right to privacy.
That, however, can be problematic. In one ongoing case that is being closely watched, known as Jane Doe 464533 v. ND, an Ontario Superior Court judge last year recognized for the first time in Canada the privacy tort of “publication of embarrassing private facts.” The judge found for the plaintiff and awarded her approximately $142,000 in damages against a former boyfriend who posted a sexually explicit video of her online.
The ex-boyfriend did not defend the case in its initial stages, but due to the size of the fine, he decided to appeal the judgment, basically restarting the entire process. Privacy experts have lauded the initial judgment, but it remains to be seen if it will stand after it works its way through the system.
Updating the law is one thing, but it must be applied effectively as well. Judges and police could also use better training in how to handle cyberbullying, revenge porn and related offences. In a recent Canadaland podcast on the subject, lawyer David Fraser said some authorities are badly out of touch in this area, suggesting that victims “just turn off their phones” when an onslaught of online harassment begins.
That isn’t realistic and in some cases can verge on victim-blaming. In a world of social media and selfies, where smartphones and cameras are always at the ready, the message that “you just shouldn’t have taken and shared that photo or video” is not an effective response to blatant invasions of privacy.
Education has its place — and certainly teens in particular should be warned about the potential consequences of sending intimate images to anyone, friend or not. But as Manitoba is showing, governments can play a more effective role in deterring cyberbullying and giving victims more options in fighting back.
One way to give victims more hope is to make it easier for them to pursue a civil, rather than criminal, remedy for being cyberbullied or subjected to revenge porn