A NEW “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/revenge-porn-research-laws-help-victims)
According to a survey by non-profit 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 centhad 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 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-penalti...)
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 was handed a suspended six-month prison sentence after earlier pleading guilty to 11 charges of making similar offensive posts.
In Malaysia, the civil law on invasion of privacy is on firm ground after the Court of Appeal delivered its landmark decision in Maslinda Ishak v. Mohd Tahir Osman & Ors [2009] 6 CLJ 653, followed by the High Court in Lee Ewe Poh v. Dr Lim Teik Man & Anor [2010] 1 LNS 1162. In the first case, a guest relations officer (GRO) was photographed easing herself in a truck by Rela (People’s Volunteer Corps) personnel after the GRO was detained in a raid conducted by Jawi (Federal Territories Islamic Affairs Department) at a club in 2003. The GRO filed a claim against the Rela personnel, Rela director-general, Jawi director and the government. She was awarded damages by the court.
In the second case, a doctor (the defendant) had taken a picture of the plaintiff’s anus during a medical procedure without informing her. The doctor’s reason for taking such a picture was for medical purpose and claimed that taking photographs during medical procedure without the consent of the patient is normal practice. The judgment of the Court of Appeal in Maslinda Ishak’s case was referred by the High Court in the second case when it held that invasion of privacy is actionable in Malaysia.
In May 2013, a woman lodged a police report in Sandakan, Sabah, claiming she was extorted RM3,000 by another woman who threatened to disseminate her naked photos taken some three years before.
The victim said she was brought to a hotel in town where she became unconscious after a drinking session, only to find herself naked when she awoke the next day. She was approached by a female friend who demanded money from her and threatened to make her naked photos public if she failed to pay up.
Then district police chief Assistant Commissioner Rowell Marong said the case was investigated under Section 383 of the Penal Code (extortion), punishable under Section 384 (10 years’ imprisonment, fine and whipping). Thus, our civil law on invasion of privacy is on firm ground.
Salleh Buang the writer formerly served the
Attorney-General’s Chambers before he left for practice, the corporate sector and, then, the academia