Pornography ( English revenge porn ) - posting on a publicly accessible network of materials of an openly sexual nature without the consent of the person depicted in them [1] .
Typically, such materials are placed by former partners in revenge (which gave the practice a name) or by hackers who gain unauthorized access to such materials. Many of these photographs and videos are selfies - taken by the portrayed person [2] [3] . Images are often accompanied by personal data, including full names, addresses and links to profiles on Facebook and other social networks [4] [5] .
In January 2014, Israel was the first country in the world to pass a law that equated porn with a sexual offense. Various laws against pornography have also been adopted in the Australian state of Victoria and in several states of the USA , namely in California and New Jersey [6] .
Content
General Description of Practice
In 2000, Italian researcher singled out “ real porn”, a new genre of pornography consisting of photographs and videos of former girlfriends distributed through Usenet groups [7] . Eight years later, the XTube amateur porn aggregator began to receive complaints that pornographic content was uploaded to it without the permission of the persons involved in it [7] . Then several sites began to specifically shoot consensual pornography that mimics pornography and post it under the guise of “authentic” user-downloaded content [7] .
Porn locality gained fame internationally when launched the IsAnyoneUp.com service in 2010 [8] . This site hosted user-submitted pornography [8] and was one of the first that also allowed the personal data of depicted people to be indicated, such as the names of employers, addresses and links to profiles on social networks [8] .
Legal Aspects
Violations of civil codes, violations of the right to privacy , copyright and criminal laws constitute legal grounds for the removal of non-consensual pornography [9] [10] , and many people whose sexual photos were posted online without their consent are looking for legal ways to removal [11] .
Civil Offenses and the Right to Privacy
Recent trials of pornography include charges against those uploading this content for invading privacy , illegally publishing personal information, and intentionally inflicting stress ( intentional infliction of emotional distress ) [12] . 40 US states, including California and New York, have anti-cyberharassment laws , which are also used in these cases [13] .
Copyright
Approximately 80% of the images and videos of the pornography were taken by the images themselves [14] . Their posting online without permission, therefore, constitutes a violation of their copyright by the uploaders. Victims of pornography in America have the right to use the content removal requirements for its providers in the form provided for by the Digital Millennium Copyright Act [15] .
US Special Laws
In the United States, two states have laws directly related to pornography: New Jersey and California [16] .
New Jersey law prohibits the distribution of sexually arousing ( sexually explicit ) photographs and videos by anyone who knows that they do not have explicit permission or the right to do so, and without the consent of the person being portrayed [17] . This law was used in court against , a student at Rutger University who distributed filming through the webcam of the sexual comforts of his roommate Tyler Clementi , after which he [18] . This law was also used in the trials of several men who were accused of porn to their former girlfriends [19] .
California law, passed in October 2013, prohibits the distribution of intimate photographs or videos taken in order to create strong emotional stress on the victim, as well as materials taken in concert with the mutual understanding that these materials are non-public, and then distributed with the same purpose [20] [21] . California law has been criticized by proponents of pornography victims for being overly narrow and inadequate to protect [14] [22] . Other experts argue that the new criminal laws designed to combat pornography are probably too broad and allow for unexpected use by their creators [23] .
Known Processes
Several well-known pornography sites, including IsAnyoneUp and Texxxan, were stopped as a result of ongoing or planned trials [24] .
In December 2013, California Chief Attorney Kamala Harris accused Kevin Bollaert of the UGotPosted porn site of 31 crimes, including extortion and conspiracy. [25] In January 2014, the creator of IsAnyoneUp, Hunter Moore, was charged with 15 counts, including a conspiracy to violate the Computer Fraud and Abuse Act , an anti-hacker law [26] .
Non-US Laws
Many European countries have well-developed legal systems for protecting personal privacy, which can also apply to pornography [27] .
In January 2014, Israel was the first to pass a law under which pornography is a sexual offense. Distribution of sexually arousing videos without the consent of the person depicted will lead to imprisonment of up to 5 years [28] .
In France, it is considered a crime to intentionally invade personal life by distributing an image of a person shot in a non-public place without his consent [29] .
In the Philippines, it is considered a crime to copy, reproduce, distribute, or publicly display sexually arousing images or videos over the Internet without the written consent of the persons depicted [30] .
The Australian state of Victoria amended the existing sexting law to prohibit the sending of sexually arousing images of third parties. [31]
In Russia, similar offenses were prosecuted under the first part of Article 137 of the Criminal Code of the Russian Federation “Violation of privacy” [32] .
Legal arguments on the legality of porn
First Amendment to US Constitution and Anti-SLAPP
Some advocates of freedom of speech object to laws restricting pornography based on the First Amendment to the US Constitution [33] . The American Civil Liberties Union protects the right to porn as a constitutional right to freedom of speech until the images are subject to criminal law, such as laws prohibiting child pornography and harassment. [34] US courts are generally reluctant to make decisions that may restrict freedom of speech [35] .
People who download pornography and specialized sites for it can also use a protection strategy through laws on state protection against (anti-SLAPP, eng. "Anti-SLAPP laws" from "Strategic lawsuit against public participation" ) [ 36] , which allow defendants to confront lawsuits aimed at restricting freedom of speech [37] .
Decency Law
In several cases, litigations brought claims against hosters and websites along with persons who uploaded images [38] . At the same time, the , also known as § 230, limits the liability of websites and providers for the content posted by their users [39] [40] . If user-generated content does not infringe copyright or criminal law, sites are not required to remove it in accordance with § 230 [41] .
Notes
- ↑ Mary Franks, Criminalizing Revenge Porn: A Quick Guide .
- ↑ Camille Dodero, “Gary Jones” Wants Your Nudes , The Village Voice (May 16, 2012).
- ↑ Danielle K. Citron, 'Revenge porn' should be a crime , CNN Opinion (Aug. 30, 2013).
- ↑ Emily Bazelon, Why Do We Tolerate Revenge Porn? , Slate (Sept. 25, 2013).
- ↑ Eric Larson, It's Still Easy to Get Away With Revenge POrn , Mashable (Oct. 21, 2013).
- ↑ Charlotte Lytton, When Sexting Gets Ugly: Flirting Can Become Fodder for Revenge Porn , The Daily Beast (Jan. 7, 2014)
- ↑ 1 2 3 Alexa Tsoulis-Reay, “A Brief History of Revenge Porn” , New York Magazine (July 21, 2013).
- ↑ 1 2 3 On The Media, Revenge Porn's Latest Frontier , WNYC (Dec. 2, 2011).
- ↑ Woodrow Hartzog, How to Fight Revenge Porn , Stanford Law Center for Internet and Society (May 10, 2013).
- ↑ Doug Barry, A New Bill in Florida Would Make Non-Consensual 'Revenge Porn' a Felony , Jezebel (Apr. 7, 2013).
- ↑ Emily Bazelon, Fighting Back Against Revenge Porn , Slate (Jan. 23, 2013).
- ↑ Complaint in Jacobs v. Seay , 13-1362 6CA0 (Fl. Apr. 18, 2013)
- ↑ State Cyberstalking and Cyberharassment Laws , National Conference of State Legislatures (Nov. 16, 2012).
- ↑ 1 2 Heather Kelly, New California 'Revenge Porn' Law May Miss Some Vicitms , CNN (Oct. 3, 2013).
- ↑ 17 USC § 102-Subject Matter of Copyright: In General .
- ↑ Julia Dahl, “Revenge porn” Law in California a Good First Step, But Flawed, Experts Say , CBS News (Oct. 3, 2013).
- ↑ New Jersey Invasion of Privacy, NJSA 2C: 14-9 .
- ↑ Megan DiMarco and Alexi Friedman, Live Blog: Dharun Ravi Sentenced to 30 Days in Jail , The Star-Ledger (May 12, 2012).
- ↑ Marueen O'Connor, The Crusading Sisterhood of Revenge-Porn Victims , New York Magazine (Aug. 29, 2013).
- ↑ California SB 255 .
- ↑ Steve Gorman. California outlaws 'revenge porn' in first-of-its-kind legislation . Reuters (Oct 2, 2013 5:12 pm EDT). Date of treatment January 26, 2014. Archived January 26, 2014.
- ↑ , creator of IsAnyoneUp , criticized the law for not covering selfies , "which is the main point ... pornography" ( Eng. "Which is the whole point ... of revenge porn" ). Melody Gutierrez, Law offers hope to victims of revenge porn , SFGate (Oct. 5, 2013).
- ↑ Too broad a law on “pornography” poses a threat to freedom of speech and to society as a whole, runs the risk of being repealed on the basis of the First Amendment and the possibility of conviction and imprisonment of persons who accidentally commit such an offense. ( English An overbroad "revenge porn" law poses a threat to free speech and the public, risks being struck down on First Amendment grounds and imprisoning or convicting unintended offenders. ) Sarah Jeong , Revenge Porn Is Bad. Criminalizing It Is Worse , WIRED (Oct. 28, 2013).
- ↑ Erica Goode, Victims Push Laws to End Online Revenge Posts , New York Times (Sep. 23, 2013).
- ↑ Press Release: Attorney General Kamala D. Harris Announces Arrest of Revenge Porn Website Operator [1] .
- ↑ Indictment, United States v. Hunter Moore .
- ↑ Marc Rotenberg & David Jacobs. Updating the Law of Information Privacy: The New Framework of the European Union, Harvard Journal of Law and Public Policy Vol. 36, No. 2 (Spring 2013), available at [2] .
- ↑ Yifa Yaakov. Israeli Law Makes Revenge Porn a Sex Crime, The Times of Israel [3] (Jan. 6, 2014).
- ↑ French Penal Code Article 226-2 [4] Archived March 3, 2016 to Wayback Machine (Nov. 19, 2013).
- ↑ Philippines Anti-Photo and Video Voyeurism Act of 2009 [5] (Feb.10.2010).
- ↑ Jon Martindale. Australian State Outlaws Revenge Porn, KitGuru [6] (Dec. 12, 2013).
- ↑ Sergey Timoshenko, Angelina Oreshkina. Volgograders condemned for the publication of someone else's intimacy . V1.ru (October 25, 2011). Date of treatment January 30, 2014.
- ↑ Erin Fuchs, Here's What the Constitution Says About Posting Naked Pictures Of Your Ex To The Internet , Business Insider (Oct. 1, 2013).
- ↑ Arguments in Opposition of California's SB 225 , (July 3, 2013).
- ↑ See United States v. Alvarez , 132 S.Ct. 2537, 2544 (US 2012) ("[A] sa general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.").
- ↑ Joe Mullin, lawsuit against “revenge porn” site also targets GoDaddy , Ars Technica (Jan. 22, 2013).
- ↑ 25 US states currently have anti-SLAPP laws. What is a SLAPP suit? , Chilling Effects Clearinghouse (2013).
- ↑ Toups v. Godaddy.com , No. D130018-C (Tex. June 18, 2013).
- ↑ 47 USC § 230 Protection for Private Blocking and Screening of Offensive Material.
- ↑ Most of the lawsuits against providers were terminated under § 230. Susanna Lichter, Unwanted Exposure: Civil and Criminal Liability for Revenge Porn Hosts and Posters , Harvard Journal of Law and Technology (May 28, 2013).
- ↑ Jerry Brito, Are Laws Against Revenge Porn A Good Idea? (Oct. 21, 2013).