‘Revenge porn’ is the unauthorised and malicious dissemination of intimate images (photographs or video) on the internet. The victim is featured in a state of undress or engaging in a sexual act. Normally the images will originally have been taken with the subject’s consent (often by a partner on a camera phone).

Indeed, the images may have been taken by the victim themselves and sent as a private message. Months later, after the relationship has ended, the images are published without the victim’s consent, or a threat is made to publish the images if the victim does not do what is asked of them. The dissemination normally takes place by uploading to a website or by email.

The publisher is invariably motivated by a desire to punish or (particularly in the case of threatened publication) control the subject.

Misuse of private information

The unauthorised dissemination of intimate photographs in this way is unquestionably a misuse of private information and the courts are likely to be sympathetic to a claimant who has had their trust abused in such a fashion. The claimant will have a reasonable expectation of privacy (as per article 8 of the European Convention on Human Rights) that will rarely be trumped by freedom of expression (article 10)/public interest arguments often run in media privacy cases.

Damages in such claims should compensate the claimant for damage and injury to their feelings, and distress arising from the misuse of the private information and the interference with their article 8 rights. The case law on privacy damages is still in its infancy and there was effectively a judicial ‘reboot’ of damages in Mosley v News Group Newspapers [2008] EWHC 1777 QB (Mosley was awarded damages of £60,000 after the News of the World alleged he was involved in a Nazi-themed orgy with prostitutes). 

Recent settlements in phone-hacking claims have been substantially higher. Also, the recognition of the tort of misuse of private information as a cause of action distinct from breach of confidence in Vidal-Hall and Ors v Google Inc [2014] EWHC 13 (QB) has potentially opened the door for claims for exemplary damages. The damage caused by revenge porn can be catastrophic. There have been several publicised suicides. It is not inconceivable that a court may award very substantial damages.

A claimant may also be able to bring claims for breach of confidence, copyright infringement, breach of the Data Protection Act and the statutory tort of harassment if the dissemination of the images (or threat) forms part of a course of conduct that the defendant knows or ought to know is causing the claimant to feel harassed, alarmed or distressed.

Removal and injunctions

A claimant’s priority will be to secure the prompt removal of any images in the public domain. Solicitors can write to the claimant’s former partner and any other party that they know has the images requiring them to urgently: (1) procure the removal of the photographs from the internet; (2) deliver the images; (3) undertake not to further disseminate the images; and (4) provide full details of any onward dissemination.

If co-operation is not forthcoming then an interim injunction can be sought. Where there is a threat of dissemination this may need to be on a ‘without notice’ basis.

A court can grant an interim injunction over several parties, including those who are unknown such as in Contostavlos v Mendahun [2012] EWHC 850 (QB) where the injunction was granted against: (1) the former boyfriend alleged to have released an explicit video; (2) a website operator hosting the video; and (3) anyone who had the video (or images taken from it) in their possession or control.

A defendant may deny responsibility for the dissemination (as was the case initially in Contostavlos [involving singer Tulisa, pictured]), perhaps by implying that the claimant is responsible. Alternatively, they may fail to engage. These types of injunctions are not standalone remedies, and if the matter does not promptly settle then the claimant must file and serve particulars of claim and proceed to trial or, if appropriate, apply for summary judgment or judgment in default.

Website operators and intermediaries

Website operators that do not remove images on notice are normally treated as defendants (although complications may arise if they are outside the jurisdiction). If images are removed it may still be necessary to seek a Norwich Pharmacal order to try and identify who has uploaded the images.

It should not be taken for granted that all website operators will comply with an order, particularly those outside the jurisdiction and those operating on the fringes of society. Some websites have been set up in far-flung territories specifically to host revenge porn and will only remove photographs on payment of a fee.

Additionally, some website operators outside the jurisdiction may seek to rely on immunity provided by local laws. For example, section 230 of the Communications Decency Act in the US protects intermediaries and website operators from liability arising from content posted by third parties (although this may not be a shield where a criminal offence is committed under local laws or there has been a copyright violation). It will be interesting to see to what extent the courts will assist claimants who hit a perceived dead end.

Could we see ‘blocking orders’ requiring internet service providers to remove access to certain websites?

Criminal remedies

No specific offence covers revenge porn and there is pressure on the government to follow the lead of several other states and legislate. A number of existing offences may apply in certain circumstances. The offence of harassment (as per the civil tort above) may be made out as blackmail contrary to section 21 of the Theft Act 1968. If the photographs were obtained without knowledge then the offence of voyeurism may have been committed (section 67 of the Sexual Offences Act 2003).

If hacking has occurred, section 1 (and potentially 2) of the Misuse of Computer Act 1990 may apply.

Sending a grossly offensive or threatening electronic communication is an offence under section 1 of the Malicious Communications Act 1988, if the sender desires the intended recipient, or someone to whom the nature of the message is to be communicated, to suffer distress or anxiety. It is also an offence under section 127 of the Communications Act 2003 to send by means of a ‘public electronic communications network’, a message or other matter that is grossly offensive or of an indecent, obscene or menacing character.

These offences were not drafted with revenge porn in mind and may often be square pegs for round holes.

Iain Wilson, Brett Wilson

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