LAST WEEK IT was reported that thousands of intimate sexual images, including images of Irish women, had been shared without their consent through the online messaging platform Discord.
Once notified of the fact, Discord identified and removed the source of the images, as well as the more than 500 users with whom the images had been shared. How the images came to be shared on Discord to begin with, however, is the more troubling issue.
Sharing these types of images, a practice commonly referred to as “revenge porn” is now an offence in Scotland, Australia, New Zealand and in England and Wales. In the US, over forty states have passed legislation to punish such activity.
While some of these laws are more successful than others Ireland is now an outlier in having no law which explicitly punishes sharing these types of images without consent.
This is abuse
Language is important here – “revenge porn” suggests that there is a justification for sharing these images. More fundamentally, it suggests that whatever the perceived wrong committed by the victim can and should be righted by the exploitation of their intimate image. Referring to such images or content as pornography, meanwhile, suggests that these images were created for the purpose of public consumption and amusement.
Professor Mary Anne Franks, a lawyer who has helped to draft many of the laws which criminalise this activity in the United States refers instead to this kind of activity as ‘non-consensual pornography,’ a term which tries to articulate the alarming transformation these images undergo from intimate parts of personal and private relationships to sources of public entertainment and shame.
These images should not be spoken about as revenge porn but instead, they should be viewed as ‘image-based sexual abuse.’ This term captures the non-consensual exploitation involved and the seriousness of the harm which results when they are shared and a person’s sexual privacy is invaded.
While Discord has removed the server and users connected with the images we (and they) know about, the alarming reality is that the images themselves probably live on.
It is highly likely copies of the removed images are still held by those who initially shared them as well as by anyone who downloaded them, or to whom they were then subsequently sent.
It is important not to think of this share and share again pattern as isolated to a small group (if you can consider 500 people a small group).
On the Friday evening after the reports about the Discord images were made public, the leading searches reported on free pornography sites in Ireland included “discord nudes,” and “Ireland girls nude photos.”
The very real social and psychological distress which image-based sexual abuse causes for victims is compounded by this casual indifference to participating in their public exposure. This is made all the worse because such images are most frequently published not from hacks by a distant third party but as a result of voluntary sharing by current and former partners.
Where is the Law for the victim?
Irish law offers few remedies to victims of image-based sexual abuse. From reports, it appears that some of the images shared on Discord were of women who are under eighteen or were under eighteen at the time the images were taken.
Where this is the case Sections 5 and 6 of the Child Trafficking and Pornography Act, 1998 (as amended by the Criminal Law (Sexual Offences) Act 2017) make it a criminal offence to knowingly possess, produce, distribute, transmit, disseminate, print or publish child pornography or to supply it, make it available to any person or to encourage or facilitate others in doing the same regardless of whether the person depicted consented to the images being taken, or shared.
However, Irish law provides little assistance to those who were over eighteen when the images were taken. While s.10 of the Non-Fatal Offences Against the Person Act 1997 provides for an offence of harassment, it does not provide any remedy for victims who are not persistently followed, watched, pestered, beset or communicated with.
Even where a victim of image based sexual abuse experienced harassment s.10 would permit the prosecution of conduct which was instigated by the sharing – not the sharing itself.
The result is that individuals who are over eighteen have few avenues of redress. A non-legal route might include seeking to have a sharer who is a member of a regulated profession sanctioned by their professional body.
But this seems inadequate relative to the gravity of the action involved. Availing of alternative routes like this also relies on the capacity of a victim to definitively identify the individual responsible for sharing their image.
When sharing occurs online it is often hard to identify these individuals without an injunction, and a court will only grant such orders where there is evidence a law has been broken. Given the absence of legislation it is hard to see how a court could make an order and without one, a false accusation could leave a victim open to a claim of defamation.
Claims premised on the GDPR (or the right to privacy) while potentially effective in seeking the removal of images are accompanied by the additional risk of paying an opponent’s costs if an action is unsuccessful, expose the victim to potentially more damaging public attention and cannot provide a victim with the support of the State and its resources which a public prosecution involves.
Equally, a victim can approach a platform where these images are being shared and request they be removed as a breach of the platforms terms of service. Again, however, this places the responsibility and burden of redress on the victim.
While civil actions provide possible alternatives, the crucial question is why victims should be happy with a system which does not recognise this activity as criminal.
What now?
In response to the Discord sharing the Minister for Justice Helen McEntee has announced she intends to work with Brendan Howlin TD to pass the Harassment, Harmful Communications and Related Offences Bill 2017 when it comes before the Dáil again next month.
The Bill was previously introduced in 2017 and reached its third stage before lapsing when the Oireachtas was dissolved prior to the general election. This Bill is a welcome development and in its current form would criminalise the distribution of intimate images without the consent of those depicted.
It would also make it an offence to communicate with a person with the intention of causing alarm, distress or harm to them through the publication of threatening, false, indecent or obscene material.
Once in force the legislation could not be applied retrospectively and could only be used by affected individuals from the date on which it entered into force. However, where the images remained online, and continued to be shared, or in circulation the offence would be ongoing and individuals engaged in that process could then be prosecuted.
While we wait for, what must be a speedy adoption of the legislation, it bears repeating that the failure to ensure the 2017 Bill was passed when it was last before the Dáil has enabled a context in which the distress of victims is compounded by the fact the law does not recognise what has happened to them as wrong.
This does not mean the legislation which is passed should be reactive or should not be carefully considered. It does mean that we owe it the victims at the centre of this story to acknowledge that the law has failed to protect them and to ensure it does not continue to fail others in a similar way.
Róisín Á Costello is Assistant Professor at the School of Law & Government in Dublin City University and a barrister.
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