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UK Rushes to Pass Revenge Porn Law as US Struggles With Growing Problem

Legislators in the UK are now rushing to write an amendment criminalizing nonconsensual pornography, but it has been difficult for American lawmakers to find a solution.

by Mary Emily O'Hara
Oct 13 2014, 11:55pm

Photo via Flickr

In 2009 Holly Jacobs involuntarily entered the startling and dark world of revenge porn. Private nude photos of Jacobs, taken by her ex, started to appear online. She quickly realized what the lawmakers around the globe have yet to grasp: Revenge porn knows no borders.

"When my material first started going viral, one of the first websites I ended up on was a revenge porn site in Montenegro," Jacobs told VICE News. "Right off the bat I was immediately on a site that was outside of the country."

Legislators in the UK are now rushing to write an amendment criminalizing nonconsensual pornography, or the leaking of private images and videos of a sexual nature. The bill comes on the heels of a controversy over laxity in US criminal law that forced some British women to pay thousands of dollars to US-based revenge porn sites in order to have their photos taken down.

But while the UK can easily pass a law banning nonconsensual pornography across all social networks and internet service providers, legislators in the US are finding it's not so simple.

Fifteen US states now have laws to prosecute revenge porn, a huge step up from just three states in 2012. And while more states have pending legislation, about half of US states have no revenge porn laws on the books at all. Even existing state laws are limited in scope, and experts say it will take a federal statute to solve the problem.

Alleged revenge porn webmaster faces trial in California. Read more here.

According to University of Miami law professor Mary Anne Franks, who created draft legislation that has served as the basis for many state laws banning revenge porn, there's one major hurdle to clear before a federal statute can hit the floor. And it's the same problem often faced by state prosecutors.

People seeking a crackdown on revenge porn see US Code Section 230 as a virtual "get out of jail free card" for companies like Google and Facebook. The law makes some fuzzy distinctions when it comes to immunity protections for websites; they are usually immune when it comes to civil violations like defamation or invasion of privacy. But Section 230 has its limits, too: companies do have to respond appropriately if the material violates either federal criminal law, like in cases of child pornography, obscenity, or harassment, or intellectual property law, like copyright.

Franks said that even though a lot of cases do violate copyright law, because selfies are being leaked, sometimes site owners just don't respond to takedown requests. Even if they do, the pictures can pop up somewhere else. Basically, once they are out there, it's incredibly hard to control dissemination of images online.

"We're trying to craft a safe harbor provision to make sure that companies who are taking steps to respond to allegations of revenge porn won't face charges," Franks said. She has been working in tandem with Representative Jackie Speier (D-CA) for a year to finalize the legislation.

Franks said most revenge porn cases can't be prosecuted in terms of photographic copyright, because, unless it's a selfie, the copyright belongs to whoever took the photo or video — usually the same person who later blasts it all over the internet.

"It's better to think of this as a sexual privacy issue," Franks said, echoing the recent statements of actress Jennifer Lawrence, who called the leaking of her nude cell phone selfies a "sex crime" in Vanity Fair last week. "It's that someone is forcing you to effectively become a sexual performer against your will. It tracks more like a voyeurism, unlawful surveillance idea. Revenge porn exposes you to a bunch of people you haven't consented to being seen by. It's a violation of sexual privacy."

Arizona's revenge porn law isn't a solution — it's a different kind of problem. Read more here.

So why can't existing laws covering voyeurism be used to prosecute perpetrators of revenge porn? Brooklyn attorney Carrie Goldberg, board member at the Cyber Civil Rights Initiative, told VICE News most existing laws let revenge porn fall through the cracks.

"With harassment, there needs to be repeated events in a course of conduct. But in the case of revenge porn, it can just be one upload that results in a world of damage," Goldberg said.

Harassment was one of the existing laws offered up as a UK solution by the Crown Prosecution Service guidelines this June, but Labour party MP Geraint Davies and other critics cited the same flaws as with US law.

"These are totally inadequate guidelines," Geraint told Cosmo of the CPS guidelines. "Conviction for harassment requires at least two offences, but most cases consist of a malicious boyfriend uploading one video [or photo] of a former girlfriend to inflict permanent and growing misery on her."

In the UK, a country roughly the size of the state of Oregon, a single revenge porn law covers everything. But varying state laws in the US only serve to highlight the fact that revenge porn doesn't end at state lines.

"At least law enforcement and prosecutors [in the UK] are taking a stance on the issue and advocating for uniformity nationwide. We certainly don't have that," Goldberg said. "Our whole system is state by state patchwork, which is really problematic when we're dealing with internet crimes."

And until a federal law makes it a crime to turn an unwilling person into an internet porn star, Jacobs continues to work with the many victims who contact her. Her organization End Revenge Porn works with a "takedown service" that helps victims get their photos removed from websites, and today Jacobs launched a hotline that victims can call for help and resources.

Jacobs said a minor cottage industry has risen up around revenge porn, where some takedown services charge exorbitant fees to make nonconsensual porn disappear. But she partners with the international law firm K & L Gates, who offer their services pro bono to victims.

As for Jacobs' own case, the irony is painfully clear. She told VICE News she filed a civil suit in May 2013 against the person she thinks leaked her nude images, but it hasn't gone far. For all the work that Jacobs has done to help pass laws banning revenge porn, her home state of Florida still has nothing on the books.

Follow Mary Emily O'Hara on Twitter: @maryemilyohara

Photo via Flickr

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