‘SEXTORTION’ AND RE­VENGE PORN: WHAT DOES OUR LAW SAY?

As Aus­tralia and the US find ways to tackle the is­sue, the civil law in Malaysia on in­va­sion of pri­vacy is on firm ground

New Straits Times - - News / Finding Solutions -

ANEW “sick­ness” has gripped so­cial me­dia in Aus­tralia. An AFP re­port from Syd­ney stated that one in five Aus­tralians have fallen prey to abu­sive be­hav­iour, in­clud­ing hav­ing their most in­ti­mate mo­ments pho­tographed or recorded on video with­out con­sent and then threat­ened that these hu­mil­i­at­ing im­ages will be made pub­lic on so­cial net­works. Eleven per cent of vic­tims saw their im­ages distributed with­out their con­sent on so­cial me­dia plat­forms like Snapchat and Face­book.

RMIT Univer­sity lec­turer Anas­ta­sia Pow­ell said: “We need to re­think our ap­proach from a le­gal per­spec­tive”. She said the law needs to be strength­ened be­cause this sick­ness called “re­venge porn” had emerged at such a rapid pace that the law is “strug­gling to catch up”.

Un­like Aus­tralia (which had just con­fronted the prob­lem lately), “re­venge porn” has come into light as far back as a decade ago in the United States.

In the US, the term “re­venge porn” (oth­er­wise known as non­con­sen­sual porn) is de­fined as the act of dis­tribut­ing in­ti­mate pho­tog­ra­phy through dif­fer­ent means with­out the in­di­vid­ual’s con­sent. While re­venge is not al­ways the mo­ti­vat­ing fac­tor, the act of dis­tribut­ing the in­ti­mate im­ages is done by the per­pe­tra­tor “in re­tal­i­a­tion for ro­man­tic re­la­tion­ships go­ing south”. It is es­ti­mated that there are now some 2,000 re­venge porn web­sites, with count­less in­di­vid­u­als be­com­ing vic­tims of ex­po­sure of their in­ti­mate im­ages in these por­tals. (http://cy­ber­bul­ly­ing.org/re­venge­porn-re­search-laws-help-vic­tims)

Ac­cord­ing to a sur­vey by non­profit or­gan­i­sa­tion Cy­ber Civil Rights Ini­tia­tive (CCRI) in 2015 in­volv­ing 1,606 re­spon­dents, a size­able pro­por­tion of them (61 per cent) said they had taken nude pho­tos or videos of them­selves and shared them with some­one else, while 23 per cent had been vic­tims of re­venge porn.

Thirty-four states in the US have laws against non­con­sen­sual porn, but many suf­fer from lack of uni­for­mity and am­bi­gu­ity. Many of these state laws crim­i­nalise the “dis­sem­i­na­tion of in­ti­mate im­ages” be­cause of the lack of con­sent from the af­fected party, while in some states the of­fen­sive con­duct is called “cy­ber ha­rass­ment and stalk­ing” and pe­nalised as such.

Un­der Florida law, sex­ual cy­ber ha­rass­ment is de­fined as “pub­lish­ing a sex­u­ally ex­plicit im­age of a per­son with­out the per­son’s con­sent and for the pur­pose of caus­ing sub­stan­tial emo­tional dis­tress”. It is a first-de­gree mis­de­meanour for a first of­fender and third-de­gree felony for re­peat of­fend­ers.

In New Jer­sey, it is a third-de­gree felony of in­va­sion of pri­vacy if some­one “dis­closes” any im­age in which in­ti­mate parts of an­other

THURSDAY, MAY 11, 2017 are ex­posed. The term “dis­clo­sure” is de­fined to in­clude sell­ing, man­u­fac­tur­ing, giv­ing, pro­vid­ing, mail­ing, de­liv­er­ing or ad­ver­tis­ing an im­age.

In Vir­ginia, any­one who dis­sem­i­nates the im­age of any per­son who is to­tally nude, or ex­pos­ing gen­i­tals, pu­bic area, but­tocks or fe­male breast when the per­son has not been au­tho­rised to do so is guilty of a Class 1 mis­de­meanour.

Ac­tion has been taken in some states to crim­i­nalise re­venge porn un­der spe­cific leg­is­la­tion. New Jer­sey en­acted its in­va­sion of pri­vacy law in 2004 (be­fore re­venge porn be­came na­tional news), pro­hibit­ing the sale, pub­li­ca­tion, dis­tri­bu­tion and dis­sem­i­na­tion of nude or sex­ual pho­tos of an­other per­son with­out that per­son’s per­mis­sion, pun­ish­able with a three-to-five year prison sen­tence or a fine up to US$30,000 (RM130,000).

Wis­con­sin passed a sim­i­lar law (nine months’ im­pris­on­ment, and/or a fine up to US$10,000) as well as Idaho (five years’ im­pris­on­ment and/or a fine up to US$50,000).

Although no spe­cific fed­eral law has been passed in the US to tackle re­venge porn, a bill was in­tro­duced by Rep­re­sen­ta­tive Jackie Speier (Demo­crat-Calif.) in 2016, rein­tro­duced in 2017. The bill sought to make it il­le­gal to “know­ingly dis­trib­ute a pri­vate, vis­ual de­pic­tion of a per­son’s in­ti­mate parts or of a per­son en­gag­ing in sex­u­ally ex­plicit con­duct, with reck­less dis­re­gard for the per­son’s lack of con­sent to the dis­tri­bu­tion, and for other pur­poses”. (http://www.crim­i­nalde­fenselawyer.com/re­sources/re­venge-porn-laws-penal­ties.htm)

In Eng­land and Wales, re­venge porn has been crim­i­nalised since April 2015, pun­ish­able by a prison term of two years. In the first year the law was en­forced, more than 200 peo­ple were pros­e­cuted.

Un­for­tu­nately, many vic­tims were re­luc­tant to come for­ward to tes­tify due to fear or em­bar­rass­ment. It means the real num­ber of re­venge porn crimes could be much, much higher.

In early April, a 37-year old man (Oliver Whit­ing) es­caped a cus­to­dial sen­tence af­ter tak­ing in­no­cent pic­tures from Face­book ac­counts of fe­male friends and plac­ing them on an X-rated web­site. He made sex­ist and abu­sive com­ments next to the im­ages and in­vited oth­ers to do the same. He

Re­venge porn is of­ten distributed in re­tal­i­a­tion for ro­man­tic re­la­tion­ships go­ing south.

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