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Criminalisation is not enough: regulate the exploitative revenge porn host websites

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7 October, 2014
Civil Liberties, Criminal Law, Dr Nikki Godden, Media Law
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Image from Stop Revenge Porn Scotland Campaign

Image from Stop Revenge Porn Scotland Campaign

Dr. Nikki Godden (Lecturer in Law, Newcastle Law School) – nikki.godden@newcastle.ac.uk

This post was first published on Inherently Human: Critical Perspectives on Law, Gender and Sexuality 

Chris Grayling, the Justice Secretary, has announced that the Government is ‘very open to having a serious discussion’ about the problem of revenge porn, in response to the call from Maria Miller, former Culture Secretary, for a change in the law to address the ‘appalling’ practice ( Justice Questions, House of Commons, 1 July 2014 : Column 745). This ‘appalling’ practice, whereby men (most commonly) distribute intimate and sexual images or videos of women (usually partners or ex-partners) on the internet without consent, is becoming more prevalent in the UK. And the effects of revenge porn upon its victims can be significant. Media reports highlight that victims have experienced personal and professional degradation and humiliation which have, in some cases, led to suicide.

The gender dimensions to revenge porn cannot be ignored. First, revenge porn is typically not an isolated abusive incident in a relationship but rather is one – albeit relatively new – method of control and violation in a wider context of domestic violence (see Scottish Women’s Aid’s Briefing Stop Revenge Porn on this point). Secondly, the fact that it is by far more common for men to distribute images/videos of women and girls contributes to and entrenches the sexual objectification of women, the sexualisation of young people, and gender inequality more generally. As such, it is important that the Government address this growing problem. It seems that the way it will do so is to consider creating a new criminal offence, or amending existing sexual offences to capture all instances where pornography is distributed without the subject’s consent. However, while further criminalisation may be helpful, the focus should be on preventing revenge porn by better regulating internet behaviour, which is a dimension of resolving this developing problem that has typically been absent from public discussions and proposed responses.

It is fair to say that current criminal laws do not properly capture revenge porn, although some can and have been used to tackle the problem. For example, victims can pursue a criminal and civil case against the person who uploaded/published the image for harassment (Protection from Harassment Act 1997). Or, where the victim is a child, the published, distributed or possessed image/video will be classed as child pornography which attracts criminal liability (Protection of Children Act 1978, s 1; Criminal Justice Act 1988, s 160). However, current offences are not designed to address the problem of ‘revenge porn’, leading to doctrinal difficulties (eg proving a ‘course of conduct’ for harassment (Protection from Harassment Act 1997, s 7(3), (4)), and conceptual issues (for example, the offences of distributing or possessing child pornography do not capture the abuse the individual suffers). Stemming from similar concerns, new criminal offences have been created in some states in America (for example, New Jersey, Texas, Utah, Wisconsin, New York, Maryland, and California), Israel, and some Australian jurisdictions, while other countries, such asCanada, Brazil, and Japanare currently considering similar solutions.

Nevertheless, there are significant limitations to existing and new criminal offences where the remedy is directed at the person responsible for uploading the image. It is likely that in many cases it will be difficult to prove that a particular individual posted the image or video on the website, meaning a criminal or civil case may be unsuccessful. Evidence is lacking to prove that crime and punishment have a deterrent effect; and in relation to gender-based crimes, scholars and activists have argued for a long time that law reform alone is insufficient to prevent such crimes. Another point here is that women will be reliant on police taking complaints of revenge porn seriously, and responding appropriately. But as with rape, for example, it is likely that victim-blaming attitudes will influence decision-making in the criminal justice system, inhibiting the effective implementation of laws addressing sexual abuse. The view expressed by Hunter Moore, founder of IsAnyOneUp, a (now obsolete) revenge-porn website, may be shared by others:

‘Oh the girl crying because she sent titty pics to some fool who put it on the internet … Why would you protect those people… How about this, you take responsibility for your actions and stop pointing the finger at other people.’

This is not to say that further criminalisation is unnecessary or futile, but it is to say that, unfortunately, it is going to be of limited value. What needs to be paid serious thought is the possibility of regulating and creating remedies against the websites which host and propagate the images.

Regulations and remedies targeting websites are central. The websites in question tend to be run for profit – typically through the display of advertisements – and are often extremely profitable, with revenues in the order of thousands of dollars per month. They are, in other words, exploiting these images – and their female subjects – for their personal financial gain. For instance, according to Moore, his website was earning around $10,000 per month from advertisement revenue. Equally, from the point of view of the victim, what is far more important is preventing websites from publishing these images, and providing a quick and easy ‘take down’ process to have them removed. Consequently, the websites sometimes advertise takedown processes – but they often charge hundred of dollars for the service, and are frequently run by the site owners themselves.

The contrast with commercial and intellectual property law is stark. Regulations and mechanisms in these contexts are directed at the website hosts and which are focused on making it simple to compel websites to remove infringing material. As such, it needs to be investigated whether similar mechanisms could be used to tackle revenge porn. In addition, as it is spread across the world wide web, an international conversation is needed. The Coalition Government focusing on localised criminal offences is insufficient. The message must be conveyed that a wider view of the problem and solutions are essential.

 

Pushing Their Luck? UK Counter-Terrorism Powers and David Miranda

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26 February, 2014
Civil Liberties, Colin Murray, Human Rights Law
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David Miranda

– Colin Murray (Senior Lecturer, Newcastle Law School) colin.murray@newcastle.ac.uk

This post was first published on Human Rights in Ireland

Stop and Search certainly was the hot human rights news story of last summer within the UK. Schedule 7 powers under the Terrorism Act 2000 allow for extended powers to stop and search, and even detain for up to nine hours individuals in the context of ports and airports, for the purpose of assessing whether they are linked to terrorism. That police powers should be extensive in this context might be thought relatively uncontroversial. After all, the potential to trap hostages in such a confined space was attractive to terrorist groups long before the 9/11 attacks displayed the potential of using civilian airliners as weapons.

The problem, as so often is when counter-terrorism is at issue, is that when such exorbitant powers are assumed, legal systems can find it very difficult to constrain their abuse. The problem really comes to the fore when, as David Anderson QC, the UK’s independent reviewer of counter-terrorism powers, told Parliament on 12 November, criticism of the security services within the UK is often muted, partly because of national pride in their activities (dating from the work of the code breakers at Bletchley Park during the Second World War) and partly as a result of the 007 brand’s ongoing appeal.

This situation produces one key question. In rather feverish context of the security debate, and with a seemingly in-built national deference to the activities of the security services, what is to stop police and security officials from abusing extended stop and search powers? For over a decade the airport powers attracted little attention. This is especially the case when their operation is compared to the furore which surrounded the day-to-day use of extended counter-terrorism stop-and-search powers on the UK’s streets, which ultimately led to the European Court of Human Rights finding a breach of Article 8 ECHR. The police seem to have appreciated, as Joshua Rosenberg picked up from Anderson’s reports on the use of Schedule 7, that the power was not simply valuable, but that “like all valuable things, it needs careful handling”.

The powers suddenly became an issue of national importance with the detention for nine hours at Heathrow of David Miranda (pictured above), partner of US journalist Glenn Greenwald. The police were investigating whether Miranda had in his possession US national security documents received from the NSA whistleblower Edward Snowden. Embarrassing for a key ally perhaps, but where is the basis for using counter-terrorism powers, Greenwald and his supporters asserted? Miranda was not a member of any banned terrorist group. For the police, however, the link between these security-related documents and counter-terrorism powers was indirect, based upon the damage that the release of these documents could do to counter-terrorism operations. This attempt to link his case to terrorism has been likened to a “conjuror’s trick” by barrister and blogger Adam Wagner.

Yesterday the High Court ruled that a challenge to the legitimacy of this exercise of the power and to the compatibility of the power generally with the freedom of expression under Article 10 ECHR could not succeed. First off, Lord Justice Laws (giving the lead judgment) quickly dismissed the contention that the power had been used for an improper purpose, ie, that the examining police officers’ purpose in stopping Miranda was out with the scope of a counter-terrorism power. Laws LJ summed up the purpose of the Detective Superintendent involved stopping Miranda (at [24]): “given the connection with Mr Snowden and the latter’s movements, that the claimant might have been concerned in acts falling within the definition of terrorism in s.1 of the 2000 Act which might be carried out by Russia and designed to influence the British government”.

The key factor is that the court accepted that the definition of terrorism under section 1 of the Terrorism Act 2000 was broad enough to provide a basis for this arrest, notwithstanding that Miranda himself could not be described as a “suspected terrorist” (at [29]):

[T]he bare proposition that the definition of terrorism in s.1 is very wide or far reaching does not of itself instruct us very deeply in the proper use of Schedule 7. … S.1(2) is concerned only to define the categories of “action” whose use or threat may constitute terrorism: not to impose any accompanying mental element. Similarly, the expression “concerned in” in s.40(1)(b) is not to be taken to import the criteria for guilt as a secondary party which the criminal law requires in a case of joint enterprise.

As long as Miranda was linked to Snowden, who was intent on publishing materials which would influence government policy and could endanger the lives of UK agents, this was sufficient for the court to find that the purpose was proper (at [32]):

Putting all these features together, it appears to me that the Schedule 7 power is given in order to provide a reasonable but limited opportunity for the ascertainment of a possibility: the possibility that a traveller at a port may be involved (“concerned” – s.40(1)(b)), directly or indirectly, in any of a range of activities enumerated in s.1(2). If the possibility is established, the statute prescribes no particular consequence. What happens will depend, plainly, on the outcome of the Schedule 7 examination including any searches where those have been carried out. There may be a prosecution for an offence under the Act, or indeed some other offence; materials in the subject’s possession may be retained if the general law allows it; the subject may be released with no further action.

In terms of whether the stop was proportionate, in light of Miranda’s involvement in journalistic endeavour, drew Laws LJ into a detailed consideration of the freedom of the press in general. Whilst he appreciated that importance of the public interest in a free press, the proportionality of any interference had to be judged in light of other public interests, such as national security (at [46]):

[There is] an important difference between the general justification of free expression and the particular justification of its sub-class, journalistic expression. The former is a right which belongs to every individual for his own sake. But the latter is given to serve the public at large; … It follows that so far as Mr Ryder claims a heightened protection for his client (or the material his client was carrying) on account of his association with the journalist Mr Greenwald … [t]he contrast is not between private right and public interest. The journalist enjoys no heightened protection for his own sake, but only for the sake of his readers or his audience. If there is a balance to be struck, it is between two aspects of the public interest.

Whilst he was not willing to give carte blanche to a public official’s assertions of security concerns (see [57]), Laws LJ was clear that valid security concerns had been made out in this case, and that he would not substitute a journalists view of these questions for those of government (at [71]):

Journalists have no … constitutional responsibility. They have, of course, a professional responsibility to take care so far as they are able to see that the public interest, including the security of the State and the lives of other people, is not endangered by what they publish. But that is not an adequate safeguard for lives and security, because of the “jigsaw” quality of intelligence information, and because the journalist will have his own take or focus on what serves the public interest, for which he is not answerable to the public through Parliament. The constitutional responsibility for the protection of national security lies with elected government …

Wrapping up, Laws LJ concludes that the powers (limited to a ports and airports context) are hedged by adequate safeguards. For all that complaints have already begun regarding the level of respect accorded to elected decision makers in the security context, it seems that the strongest ground for appeal is this briefly addressed issue of safeguards. After all, it was the basis on which the general no-suspicion stop-and-search power was subject to major reform in the Protection of Freedoms Act 2012, and is already under fresh review by David Anderson QC. This legal battle may be lost, the war over counter-terrorism powers looks set to rage on.

Lessons from the Lex Gabinia

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20 February, 2014
Administrative Law, Civil Liberties, Constitutional Law, Harry Perrin, Human Rights Law
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‘Gnaeus Pompeius Magnus’ (‘Pompey’ or ‘Pompey the Great’)

– Harry Perrin (Independent Scholar and Trainee Solicitor)

It wasn’t all yo-ho-ho and a bottle of rum for the Ancient Romans when it came to pirates. By the fourth decade of the first century BC, Plutarch tells us, the pirates were so prevalent in the Mediterranean that ‘all navigation and all commerce were at a standstill’ causing resource shortages and volatile food prices. ‘Roman supremacy’, Plutarch continues, was ‘brought into contempt’ not only by the pirates’ ‘seizures of high ranking officials, and the ransoms which they demanded for captured cities’, but by ‘their flute-playing, their stringed instruments, their drunken revels along every coast.’ Evil crimes indeed.

The way in which the Romans dealt with the problem tends to spring to my mind whenever our country today is faced with situations billed as ‘emergencies’ or ‘extraordinary’.

The constitution of the Roman Republic in the first century BC was designed so that no one person could amass too much power over too prolonged a period: ‘an elaborate set of precautions against the accumulation of executive power in a single person’, notes Eric Posner, ‘to prevent the recurrence of monarchy’. There were two heads of state, the consuls, who held office for one year. The post which a consul would typically hold afterwards, the proconsulship – governing a foreign province in the Roman territories – was also limited in term to one year to prevent an already powerful individual accruing too much military might away from the watchful eyes of Rome.

If you are a fan of irony, you may already have spotted that from this Republic’s careful constitution sprang one of the most powerful empires we have known. Note also that Sulla, a constitutional reformer who tightened many checks and balances in 81BC (including limiting the proconsulship to one year), did so when he himself was holding dictatorial power on the basis of an emergency; and note the lex Gabinia.

One hundred and twenty thousand infantrymen, five thousand cavalrymen, five hundred ships, and the right to appoint twenty four powerful lieutenants, were among the resources allotted to Pompey by Gabinius’ law, passed in 67 BC, to combat piracy in the Med. In terms of territorial command, Plutarch notes that Pompey’s power over the sea and mainland areas up to fifty miles inland meant that ‘there were not many places in the Roman world which were not included.’ He had not only ‘the supreme naval command but what amounted in fact to an absolute authority and uncontrolled power over everyone.’ So much for the elaborate system of checks and balances.

Unsurprisingly with these resources Pompey dealt with the problem with incredible speed. Food prices dropped as soon as the lex Gabinia was passed and piracy was quashed within three months.

But Pompey did not surrender his power. Another ‘extraordinary situation’ justified Pompey not only keeping his naval command and resources, but being allotted further power over the Roman territory in the East, including the military forces already stationed there, then under the command of his colleagues Lucullus and Glabrio. The lex Manilia was passed to this effect in 66BC. The justification: war in the East, against Mithridates and Tigranes.

It is easy to turn history into linear narratives and morality tales with the benefit of hindsight, and history’s headlines should be questioned and re-questioned for accuracy and fairness. The headline point here is that the excessive accrual of power by Pompey clashed with the excessive accrual of power by Julius Caesar. Caesar crossed the Rubicon, said ‘the die is cast’; civil war, birth of the empire and the rest, as they say, is ancient history.

Headlines are memorable though, and I do remember the lex Gabinia whenever ‘emergency measures’ are proposed today. Take the detention of terror suspects. Until January 2011, the state could detain those suspected of terrorism-related offences, without charge, potentially without even telling them the reason for their detention, for up to 28 days. Unsuccessful proposals went before Parliament to raise this to ninety and then forty two days. The justification for prolonged detention without charge was that the country was in an extraordinary situation, and emergency measures were appropriate.

And were the laws put back to normal once the emergency had passed; once the pirates had been defeated, as it were? The detention-without-charge period was restored to fourteen days, but, as human rights group Liberty points out, this is still high compared with the USA (two days), Italy (four days), Canada (one day) and Ireland (seven days). Many would argue that the danger still exists here, that the pirates have not been conquered. This may or may not be so, but when a so-called extraordinary situation prevails for so long, it becomes the norm – it becomes ordinary – and we should discount any arguments based on the need to deal with an emergency in our assessment of whether laws in question are proportionate.

And take the trials following the summer 2011 riots, where courts sat throughout the night. Keir Starmer, Director of Public Prosecutions at the time, has praised the role of this swift administration of justice in curbing the disorder. Sentences for crimes committed during the riots were on average 4.5 times longer than those for similar offences in the previous year. This is not problematic per se, provided that due process was followed: judges can take account of the context of crimes when sentencing.

More of a concern is that due process was not followed. Solicitors who acted for defendants in the riot trials have voiced concerns, noting knee jerk reactions from judges, ‘conveyor-belt justice’, and a failure to distinguish between ringleaders and followers. A magistrate stated that the usual sentencing rulebook for children with no previous convictions had been ‘torn up and thrown away’.

The justification for the all-night courts was that the emergency in which the country found itself in August 2011 required an extraordinary response. This may well hold water. My concern though, and that of the defence lawyers cited above, is that these measures may have been disproportionate to the extent that they unjustifiably interfered with the defendants’ right to a fair trial.

I acknowledge that had the judiciary and the government failed to deal adequately with the riots, the consequences would have been dire – even more so than they were, and that all-night courts may well have been the best option. And the lex Gabinia may have been the right way of dealing with the pirates. Pompey succeeded where no other commander did. It is easy to point at it now as the beginning of the end of the Roman Republic, but if the pirates had prevailed, we might all be playing flutes and speaking pirate now. Aargh!

I have never been suspected of terrorism or rioting, or even piracy (though I have once exhibited drunken behaviour in a Mediterranean coastal-town). I do however urge the conscientious citizen to assess any proposals which have the potential to infringe on our rights or constitution and to bear in mind the lex Gabinia. Ask the following, because these issues matter to all of us:

  1. Is the measure proposed proportionate to the issue it is proposed to deal with?
  2. Are the reasons for justifying the measure sufficiently closely related to the measure, and if any of these reasons fall away (‘emergency measures’ when the emergency has ceased) is the measure still justified?
  3. Has consideration of the proposed measure been properly weighed up against a consideration of its effects on the constitution and on our rights?

There we have it: the ‘caveat Gabinia’. I have just coined a phrase. Latin scholars correct my grammar before it catches on.

Lost in Time? Controversy over Police Powers in Northern Ireland

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24 December, 2013
Civil Liberties, Colin Murray, Human Rights Law
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Image Source: http://www.bbc.co.uk/news/uk-northern-ireland-25412487

– Colin Murray (Senior Lecturer, Newcastle Law School) colin.murray@newcastle.ac.uk

This post was first published on Human Rights in Ireland

The Troubles just won’t slip conveniently into history. In recent weeks anyone confident that Northern Ireland has “moved on” will have received multiple jolts to such complacency. A car bomb (and last night a fire bomb, pictured left) and Loyalist protests have disrupted shopping in Belfast’s city centre in the run up to Christmas. And as for the Troubles themselves, they have been a prominent part of the news headlines. Revelations UK army units operating beyond the standard rules of engagement in the 1970s. Outcry over the fate of the “disappeared” and over the strenuous denials by Gerry Adams over his own involvement. Shock over the detail of collusion between members of the Garda and the Provisional IRA in the findings of the Smithwick Tribunal. The risk of more bloodshed today running hand-in-hand with blood continuing to seep under the door marked “the Troubles” with every new revelation.

This barrage of stories has wrong footed many. Most obviously, Sinn Féin has seriously miscalculated in its response to the Smithwick Report’s findings, the Disappeared documentary and the conviction of Liam Adams. The dogmatic adherence to the line that Provisional IRA volunteers were “only doing their duty” in a dirty war has never washed for the UK Government in accounting for the actions of members of the UK security forces, and indeed, in responses to events such as the Saville Report, has now largely given way to outright apologies rather than attempted justifications.

Perhaps, in this atmosphere, Northern Ireland Attorney-General John Larkin misread the auguries when he put his head above the parapet and raised the possibility of calling a halt to investigations of Troubles-era political violence, finding himself alone in the face of a barrage of criticism. Maybe Larkin thought that a stultified debate over what to do about the past could be advanced by someone saying the unthinkable. At the very least he did prove that there are certain things that can unite politicians from all political perspectives in the Province. Victims must never be forgotten went the rallying cry, all the more galling when the Northern Ireland Executive has steadfastly failed to move any proposals to address victims’ issues since the Assembly was restored in 2007.

Still, the furore is nonetheless surprising. Few commentators can predict with any degree of accuracy what reports or comments will catch the attention of Northern Ireland’s politicians. October saw the Northern Ireland Policing Board published its extensive Thematic Review on the use of police powers to stop and search and stop and question under the Terrorism Act 2000 and the Justice and Security (NI) Act 2007. Maybe the title put people off, for the Review (despite being trailed by David Anderson QC, the UK Independent Reviewer of Counter-Terrorism legislation) generated almost no attention, despite the high levels of public concern over stop and search. Just this May the Northern Ireland Court of Appeal ruled that the stop and search under section 21 of the Justice and Security (NI) Act 2007 of a former IRA hunger striker and a brother-in-law of Martin McGuinness were unlawful (the Fox and McNulty Case). The Court concluded (at [45]):

A power vested in the police to openly stop and question a person is not the exercise of a covert surveillance power but it partakes some of the characteristics of surveillance.  The fact that it can lead to open stopping and questioning in circumstances which do not ensure even privacy between the police and the individual adds to the potential for invasions of the article 8 right.  It is a power which does require justification and which provides effective guarantees and safeguards against abuse.

As the Thematic Review found, working with both the Fox and McNulty decision and the jurisprudence of the European Court (ECtHR) on the right to privacy (p.27):

The case law of the ECtHR clearly establishes that covert and secret surveillance by state agencies constitutes a particular threat to democracy and freedom which requires strict justification in the interest of national security or for the prevention of crime. The system itself must provide adequate and effective guarantees against abuse.

It ultimately restated the importance of the ECHR in policing and security operations (p.110):

The debate about the police use of powers to stop and search and stop and question can become clouded by many false assumptions, which it is hoped are challenged in this thematic review, but what is abundantly clear is that the Human Rights Act 1998 does not value individual rights at the expense of the community. Rather, it provides a model for a functioning society within which certain rights can be limited while protecting the human rights of all members of society. The Committee has stressed many times, but wishes to restate its central message that there is no conflict between human rights and policing because policing is the protection of human rights.

Such conclusions should resonate not just through Northern Ireland, but into debates over treatment of individuals such as David Miranda as well. So why did the report get ignored? It must have been the title. Or are we, as a community, better disposed to looking back to the time of the Troubles, rather than considering how its legal framework continues to affect our lives?