JURIST Guest Columnist Faisal Kutty of Valparaiso University School of Law discusses the offenses of non-consensual publication of obscene materials and possible implication of the laws banning such offenses …

“I was just so afraid. I didn’t know how this would affect my career,” said Jennifer Lawrence, referring to the hacked nude photos of her posted online. The three time academy award nominated actress spoke out for the first time in October in an exclusive interview with Vanity Fair. “It is not a scandal. It is a sex crime,” the 24-year old said. “It is a sexual violation. It’s disgusting. The law needs to be changed, and we need to change.”

Though not strictly “revenge porn” (what activists call non-consensual pornography), Lawrence’s story brought global attention to the growing problem of intimate images being shared publicly, usually by former romantic partners or abandoned lovers without consent. In fact, the US-based End Revenge Porn campaign documents that one out of ten ex-partners threatens to expose risqué photos and 60 percent of them follow through with it. And more than 3,000 porn sites dedicated to exposing, naming and shaming make their work easier. According to the Cyber Civil Rights Initiative, launched by victims and activists, this kind of “harassment raises the risk of physical attack, offline stalking, and emotional harm.”

Until recently, this modern-day cyber equivalent of throwing acid in woman’s face was not attractive or compelling enough for legislators to tackle. Both the East and West have failed one way of the other. Indeed, even conservative societies are not immune. The most high profile Middle Eastern “revenge porn” case is that of Nicole Ballan, the 1995 Miss Lebanon runner-up, whose compromising video was leaked to the public. The beauty queen disappeared from the pubic scene for years shortly after the leak, while her then-boyfriend Marwan Keyrouz was jailed. In 2013 Moroccan police took action against a Facebook page that “wreaked havoc in the Ochre City [Marrakesh] and tarnished the reputation of dozens of young women.” The photos and videos are still circulating.

Though technically in many Middle East nations these offenses can be prosecuted under indecency, anti-pornography, defamation, invasion of privacy and other laws, the victims still may face backlash or re-victimization, even from authorities. In fact, this may even bar many victims from coming forward.

Meanwhile, in many Western jurisdictions free speech laws and sexual liberalism makes it even harder to criminalize. However, a number of high profile suicides (Audrie Pott, Amanda Todd, Rehtaeh Parsons, Julia Rebecca) relating to leaked photos—not always revenge porn in the strict sense—have helped ignite some reforms and some urgency. Earlier in 2014 in a bold move Israel enacted a law that imposes a five year maximum sentence for the online distribution of sexual images without consent and classifies the perpetrator as a sex offender. A German court also joined the fray when it ruled that erotic photos of a former partner are no longer protected under the country’s copyright laws and requires a party to delete them on request. The ruling is limited to nude or erotic photos.

Since 2013, 13 American states, including Arizona, California, Colorado, Delaware, Georgia, Hawaii, Idaho, Maryland, New York, Pennsylvania, Utah, Virginia and Wisconsin have enacted legislation. While another 28 introduced bills in 2014.

Canadians continue to struggle with Bill C-13, the Protecting Canadians from Online Crime Act, as it passed another procedural hurdle in Parliament in October. In the latest development, UK authorities in October revealed that the new Criminal Justice and Courts Bill [PDF] includes an amendment specifically targeting “revenge porn” pictures and videos on the Internet. Perpetrators could face two years in jail.

The momentum appears to have moved the issue along, but due to low grade, rushed and careless drafting, many of the laws are attracting serious opposition. For instance, as pointed out by the American Civil Liberties Union and even some anti-revenge porn activists, some of the laws may even criminalize sharing photos of the Abu Gharib torture victims. The ACLU has filed suit [PDF] challenging the Arizona bill for being overbroad. “Arizona’s law clearly violates the First Amendment, because it criminalizes protected speech,” said Lee Rowland, a staff attorney with the ACLU. She added, “States can address malicious invasions of privacy without treading on free speech, with laws that are carefully tailored to address real harms. Arizona’s is not.”

Privacy violations as well as increased police surveillance and search powers are also potential issues. The Canadian Bill C13, for instance, appears to address the non-consensual photo sharing as almost an after-thought. Arguably, it reeks of a disingenuous and opportunistic expansion of state power. Indeed, the bulk of the bill focuses on a number of new “lawful access” powers, such as lowered warrant threshold (“reasonable suspicion” as opposed to the “reasonable grounds to believe”) for police access to online data, phone records or for digital tracking. Among other things, the bill also grants immunity to telecoms that hand over data to law enforcement.

Each of these are valid concerns and must be addressed. The difficulty of doing so must not result in the scrapping or watering down of these necessary laws. Legislators should pay heed to the model statute and the recommendations from various stakeholders. They must follow through by drafting laws that respect privacy, limit police powers and do not trample on free speech rights. In the US context, one of the creative ways to attack this problem without trampling on the entrenched constitutional order would be to amend Section 230 of the 1996 Communications Decency Act, which inoculates online services and platforms from liability for user-generated content no matter how malicious. There is much flexibility in amending a statute that artificially protects entities well beyond what the Constitution provides. It is certainly wise to ask why Internet services and platforms should have more protection than others.

In addition, the border-less Internet world with its trans-jurisdictional complexities demand that this issue be placed on the international legislative docket, as well. Indeed, if there were no local victims, then the Dutch national charged in the harassment-induced suicide of Canadian teen, Amanda Todd, may not have been arrested.

Moreover, discussions about the cultural milieu are wanting. Arguably, in some cultures it may take a nude photo, while in others even a partially clothed photo may be enough to devastate a life. Legislation must take into consideration not only malicious intent, but also the unique situation of the victim—something akin to the “thin skull rule” used in civil actions (essentially the idea that you take your victim as she is and you are responsible for all her losses even if your action would not have caused such losses in other people).

Lawrence’s visceral reaction resonated with many. Yes, everyone has a right to his or her body, but a right without a remedy is no right. Lawrence has the resources and clout to seek recourse and to compel the state to act (because the photos were stolen). What about the other silent less fortunate and more vulnerable victims?

Faisal Kutty is an Assistant Professor and Director of the International LL.M. program at Valparaiso University Law School in Indiana and an Adjunct Professor at Osgoode Hall Law School of York University in Toronto. His article “Islamic Law in U.S. Courts: Judicial Jihad or Constitutional Imperative?” is forthcoming in the Pepp. Law Rev., Volume 41 (Special Issue). He blogs at the Huffington Post. Connect with him on LinkedIn or follow him on Facebook and Twitter @faisalkutty. You can view and download some of his academic publications at SSRN.

Suggested citation: Faisal Kutty, Revenge Porn and Free Speech: Let’s Not Throw Out the Baby with the Bathwater, JURIST – Academic Commentary, Dec. 2, 2014, http://jurist.org/academic/2012/12/Faisal-Kutty-obscene-speech.php.