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Revenge Porn is a crime. Our laws are criminal.

Rory Clarke examines how the woeful inadequacies of Ireland’s harassment laws threaten to impliedly permit the prevalence of revenge porn.

In recent years, with the true advent of the digital age, the sensation known as ‘revenge porn’ has become more and more prevalent. This has assumed the form of explicit videos/photos gathered during the course of an intimate relationship or exchanged in the heady days of a fiery romance, with their publication either threatened as a blackmailing chip, or carried out amongst one’s nearest and dearest, in a manifestation of vitriolic vengeance. Although it offends society’s innate sense of justice and fairness – the usual benchmark for criminalising activities – our legal system has been caught playing catch-up on digital crimes in general, and nowhere are its woeful inadequacies better exposed than in this area.

Not even UCD is safe from the infamy of this regrettable trend. In the 2015/2016 academic year a report in the College Tribune alleged the existence of a group of approximately 200 UCD male students, in which explicit pictures of exes and other non-consenting women were circulated, exchanged and rated. Ultimately the existence of the ‘UCD 200’ was not upheld and was variously reported as based on ‘hearsay’ in this newspaper and “without evidence” in a communication from Registrar and Deputy President of UCD Professor Mark Rogers. Despite the story’s debunking, the narrative of a university awash with misogyny prevailed, showing perhaps the inflammatory effect of such activity, even where it could not be proven to be true. The nail in the coffin however, is that even if the allegations were true, it seems unlikely that the ‘UCD200’ would have faced legal liability under the current statutory regime.

The Non-Fatal Offences Against the Person Act 1997 is the relevant legislation to date in this area. Section 10(1) of that Act is worth quoting in full; “Any person who, without lawful authority or reasonable excuse, by any means including by use of the telephone, harasses another by persistently following, watching, pestering, besetting or communicating with him or her, shall be guilty of an offence.” Nowhere in the section is there any allusions to blackmail, sexual images or revenge. This is just the first of many indications of the law being unfit for purpose; it is being twisted and stretched by prosecutors, desperate to prevent guilty perpetrators walking free due to the law’s own failures.

The Director of Public Prosecutions (DPP) has chosen, with little practical choice, to proceed with prosecutions under Section 10 for revenge porn. There have been two successful prosecutions for revenge porn-type incidents under Section 10, but both have been caveated by the ‘guilty’ pleas, meaning there is still no case law upholding this interpretation. Thus far the Court has been willing, for obvious policy reasons, to indulge the DPP, but if raised by a wiley defence team, it seems unlikely that, under judicial scrutiny, Section 10 could be held to encompass revenge porn.

There are two main problems with this law in terms of its practical utility for revenge porn prosecutions; the persistence requirement and limited list of activities which constitute harassment. The ‘persistence’ requirement essentially precludes prosecution for any single instance of revenge porn. Even with the generous definition given to this requirement by the Irish Courts (incidents which are separated by intervening lapses of time, incidents capable of such severance or one unambiguously continuous act) a one-time publication of videos/pictures would not be legally prohibited. With such personal and explicit material as is connoted with revenge porn, the marginal effect on the victim, in terms of shame and embarrassment, if more than one image/video is released is minimal. The sharing of one video can do irreparable harm to people’s reputation and lives and should not be countenanced by our criminal justice system.

“Following, watching, pestering, besetting or communicating with” a victim are the only acts under which a harassment charge can be brought in Ireland. This list is exhaustive – if the behaviour isn’t listed, it is not harassment. End of. In particular, the requirement of “communication with” a victim has the net effect of precluding indirect harassment such as revenge porn, where the act is not directly with the victim, but concerns them. In an effort to make the law clear and certain, the Oireachtas has tied the hands of the DPP and the police. Speaking at the Law Reform Commission’s (LRC) seminar in April 2015, a representative of the DPP indicated that the current system has created obstacles in proceeding with indirect harassment. Indeed the LRC has recommenced, on multiple occasions, that the law be reformed to make indirect harassment as an offence. Unfortunately, due to the law’s inadequacies and the false perception of the internet as a guarantor of anonymity, the LRC found that many victims are “reluctant” to engage with the Gardaí as they believe  it is “futile”. This emphasises that the horrible reality of revenge porn is even more stark than we realise.

R v Debnath is an English case which is a classic example of revenge porn. After a one night stand where the accused (mistakenly) believed she’d contracted an STD, she started a year long campaign of online harassment. This included allegations of sexual indiscretions, sent to the victim’s fiancé and employers, and registering the victim on gay liaison websites. Although this was successfully prosecuted in the UK the specific language of section 10 would have disavailed him of a legal avenue of redress in Ireland, where the accused’s actions clearly warranted legal censure. Similarly R v DeSilva, a Canadian case, would have likely failed in Ireland. In this case the accused posted a non-consensually obtained explicit video on his Facebook page, showing the victim in a compromising position.  

Although some parties, particularly social media sites, are reluctant to expand our current law due to the potential impact on freedom of expression, these concerns are, in reality unfounded. The criminalisation of online satire and comedy, as well as gossip and rumours, is obviously undesirable but in light of the requirements of Section 10(2) as it stands this should not be an issue. It details that to constitute harassment the person’s acts must “intentionally or recklessly, seriously interfere with the other’s peace and privacy or causes alarm, distress or harm.” This is clearly a high threshold for gossip to breach, and one which, in reality, it rarely will. Furthermore these arguments can be dispensed of in light of a recognition that with the bringing of a jury to Court, common sense also takes a prominent place.

Revenge porn is a problem which has swept the world in recent years, as relationships become more and more profligate and digital media offers an avenue of convenient and cruel reprisals for spurned romance. It is also a problem which Irish law has consistently failed to grapple with. If our justice system is to maintain credibility and the trust of the Irish people, this area of law warrants urgent attention.