Despite former culture secretary, Maria Miller’s recent declaration that the “existing legal framework does not provide” protection against the posting of revenge pornography on the internet, the Berkeley Solicitors and the Law does have some answers.
Revenge pornography is generally posted on the internet by a former and vengeful lover. Difficulties arise when these are transferred, by anonymous individuals onto numerous web sites. This makes actions to remove the material and obtain redress in damages a complex and difficult exercise.
Any person seeking redress for revenge pornography, involving complete removal of intimate material, must consider the respective legal positions of:
- Information society service providers (ISSPs) (a defined term) on whose websites this material is published.
- Offenders who post tortious or unlawful material on the internet.
- Victims who seek redress for, and the removal of, such material.
ISSPs are conditionally exempt from liability for material posted on sites which they facilitate, cache or host (defined terms see EC Directive on electronic commerce, 2000/31/EC, Arts 12, 13 and 14).
ISSPs which cache may be held liable as principals, but only if they modify or amend any of the material published on their websites.
Generally therefore the liability of ISSPs can only be grounded by actual knowledge that tortious or unlawful material has been posted on their website.
Despite this proposition, ISSPs are slow to remove such material and in many cases may not have a legal obligation to do so. Ultimately they might only respond to the terms of a court order requiring expeditious removal or disablement of such material (see Tamiz v Google  1 WLR 2151).
It follows that ISSPs can adopt a passive and reactive approach, even to the posting of revenge pornography .In the absence of a court order the law is perhaps close to the proposition that they may turn a “blind eye” to whatever material is posted however offensive that may be, providing it is not manifestly illegal (eg paedophilic images).
This means that ordinarily the liability for posting offensive material will usually accrue to the poster and not to the ISSP.
Cyber-stalking and online harassment often develops from revenge pornography. This is frequently conducted by anonymous individuals who are difficult to identify. While the source of the original postings may be ascertainable, the problem of escalation of publication onto myriad websites makes tracing more complex.
Much of the material is likely to be, among others, in breach of legislation such as s 127 of Communications Act 2003, Obscene Publications Acts 1959 and 1964, Malicious Communications Act 1988, Protection of Harassment Act 1997 and Defamation Act 2013 etc. The victim will wish to protect his or her rights under Art 8 Homan Rights Act.
Consideration has to be given to the conflicting rights of freedom of expression (Art 10) on the one hand, and the protection of reputation and of private life (Art 8) on the other. Surprisingly the statutory framework of the Defamation Act 2013, in the era of Web 2.0 and “citizen journalism”, shifts the balance away from the protection of reputation (see s 1 and the enhanced test which “must cause or is likely to cause serious harm” to the claimant’s reputation).
Even though the European Court of Human Rights sought to redress this imbalance in Delfi AS v Estonia (App no 64569/09 )  ECHR 941, it is clear that victims must be astute to protect and assert their rights in this area and that they must use private law remedies if they wish to protect matters concerned with privacy and reputation.
VICTIMS WHO SEEK REDRESS & REMOVAL
Ms Miller is probably correct in her assertion that the present public and criminal law is unfit for purpose. This inadequacy must be redressed by civil law.
Anonymity may not be an absolute impediment to the victim obtaining redress. Norwich Pharmacal orders may be granted to identify perpetrators; injunctive remedies exist involving the joinder of “persons unknown” as defendants; electronic service can be obtained on ISSPs. These procedures, among others, circumvent the difficulty of litigation to protect against the posting of revenge pornography, anonymous cyber-stalkers and harassers.
Injunctive terms can include restraining (unknown) defendants from publishing material on social media and internet forums and can order the removal of offensive material. A careful definition of defendant can join in and define ISSPs as principals to the relief sought, and may apply after they have been placed on notice of the relevant terms of the injunction. Recently a claimant for whom I acted joined in as defendants “the domain owners, webmasters, website hosts and/or internet service providers providing domain name, website or internet services to the defendants”.
Policing the internet provides one of the new challenges in the twenty-first century. Information technology is developing at an increasingly fast rate. The law has been slow to respond. At present the public and criminal law is unlikely to offer victims satisfaction and reassurance. The response must involve the development of “new law” civil remedies utilising innovative and carefully crafted injunctive relief. Alternative service orders by electronic means must be obtained as a matter of routine. Ordinarily, defendants should include “persons unknown” and include ISSPs. Thus Huxley’s Brave NewWorld , now expressed in internet misuse, has some prospect of being brought within the reach of the civil litigant. The development of public remedies will take some time to catch up.
For further information, please contact Adrian Berkeley on 0161-371 0011 or at firstname.lastname@example.org
Based on an article from New Law Journal by Tim Lawson-Cruttenden solicitor-advocate specialising in cyber-stalking and harassment. He acknowledges the help of William Cowell, a law graduate from Southampton University.