Under Article 12 of the Universal Declaration of Human Rights and Article 8 of the European Convention on Human Rights, the privacy of individuals is protected from interference and attacks. However, the advent and evolution of the internet has created new ways for users to violate privacy that are difficult to regulate and prevent. One such modern privacy violation is revenge porn, which can be broadly defined as the distribution of sexually graphic images of individuals without their consent.

As access to the internet has provided individuals with the ability to search and share information quickly and easily, revenge porn has become a mechanism used by abusers and harassers to diminish their victim’s privacy. The three major forms of revenge porn include Nonconsensual Pornography, which can be defined as the distribution of private, sexually explicit images of individuals without their consent; Recorded Sexual Assault, which involves using the image or video capture of a sexual assault– typically by a rapist– to further humiliate a victim and/or discourage them from reporting the crime; and Sextortion, which is the act of threatening to expose a nude or sexually explicit image in order to get a person to do something such as share more nude or sexually explicit images, pay someone money, or perform sexual acts.

While several countries have been successful in criminalizing revenge porn, criminalization has required legislators to balance the human right to freedom of expression with the human right to privacy. Both of these basic human rights are governed by the Universal Declaration of Human Rights and the European Convention on Human Rights. In order to craft effective strategies to punish distributors of revenge porn, countries have had to be creative in ensuring such strategies do not unintentionally infringe on the right to freedom of expression. As discussed below, international approaches to protecting individuals from revenge porn have included defining it as a breach of civil law under defamation and including it as part of existing sexual violence statutes. While these approaches have been comprehensive, they have almost all led to conflicts with existing country protections of the right to freedom of expression.

Last November, Senator Kamala Harris introduced the ENOUGH Act, or the Ending Nonconsensual Online User Graphic Harassment Act of 2017. The goal of this act is to amend Title 18 of the United States Code to include a provision that would make it a federal crime to “knowingly distribute a private, visual depiction of an individual’s intimate parts or of an individual engaging in sexually explicit conduct, with reckless disregard for the individual’s lack of consent to the distribution, and for other purposes.” A vote is likely to occur soon on the ENOUGH Act once the Senate Committee on the Judiciary completes the markup process. The potential effectiveness of the ENOUGH Act can be analyzed through a critique of international legal approaches to combating revenge porn.

In the United Kingdom, a law was passed in 2015 to criminalize all forms of revenge porn. Within the first six months of the law being enacted, 175 cases of revenge porn were reported, but very few people were convicted of the crime. The sentencing for convictions of revenge porn under the UK law imposes a maximum sentence of two years in prison with no additional fines or required protections for the victim. Criminalization of revenge porn in the UK illustrates the negative aspects of the idealistic view that proponents of criminalization hold. While criminalization may increase reporting of revenge porn, it creates difficulties in punishing distributors of revenge porn since evidence for the criminal trials are often scarce. Additionally, the relatively low maximum sentence for those convicted of revenge porn does little to address the legal needs of victims. Without the ability to recover damages due to the law being a criminal statute, the victim is likely unable to receive monetary relief for the harm caused, which may have required them to take expensive measures to further protect their privacy. In terms of free speech, the law provides exceptions for journalistic material, but nonetheless it has been criticized by organizations such as English PEN and Article 19, who argue that the law criminalizing revenge porn is too broad and requires more exceptions for artistic expression.

In Iceland, revenge porn has not been criminalized, but distributors of revenge porn are prosecuted under Iceland’s Tort Act, which includes decency and defamation clauses. An example of the effectiveness of this approach is demonstrated in a case regarding the conviction of a 19-year-old for distributing naked pictures of his ex-girlfriend online without her consent. In this case, the distributor of revenge porn was required to pay his victim $1,800 in damages. By allowing victims of revenge porn to recover damages, Iceland’s approach to combating revenge porn provides both a deterrent for distributors to commit further acts of revenge porn, while also providing victims with reparations for the harm caused. However, without a possible prison sentence, some distributors of revenge porn may not view the possible $1,800 in damages as a deterrence. Revenge porn is a malicious act, and unfortunately, many distributors could view the benefit of revenge as outweighing the high monetary punishment. In comparison to the United Kingdom, Iceland’s efforts to combat revenge porn have not encountered as much criticism from free speech activists. This is likely due to how Iceland classified the act as a tort, but it could also be a result of the Icelandic popular opinion that censorship is beneficial, as evidenced by Iceland’s proposition of a law to ban all online pornography.

Currently, in the United States, forty states and the District of Columbia have laws criminalizing revenge porn, but the passage of the ENOUGH act would make the distribution of revenge porn a federal crime. The possible effects of the passage of the ENOUGH act can also be predicted by looking at similar state-level laws prohibiting revenge porn. For example, in New Jersey, revenge porn acts are criminalized as acts of harassment and distributors of revenge porn are prosecuted as harassers. The criminalization of revenge porn in New Jersey has made it easier for victims of the horrific crime to be granted restraining orders against their abusers/harassers. This criminalization in New Jersey has also extended the scope of such restraining orders by requiring the abuser/harasser to remove all images/videos of their victim from the internet. Additionally, someone found guilty of revenge porn under New Jersey’s law is ordered to pay a fine of up to $30,000 and can be sentenced to three to five years in prison. With this combination approach to sentencing, New Jersey’s law is effective in achieving a balance between deterrence, rehabilitation, and justice for the victim when it comes to punishing perpetrators of revenge porn. No lawsuits have been filed yet regarding the New Jersey law, but similar laws in Arizona and Texas have been at the center of lawsuits the extent to whether the laws are unconstitutional because they infringe on the first amendment right to free speech.

While the ineffectiveness of the UK and Icelandic approaches to combating revenge porn provide a negative view of criminalizing or reclassifying the horrific act, the effectiveness of New Jersey’s law criminalizing revenge porn gives an optimistic outlook to the possible impact of the ENOUGH act, if passed. Harassers, abusers, and distributors would be deterred by the monetary fine and rehabilitated by the possible jail sentence, and victims of revenge porn would be able to receive both monetary reparations for and protection from harm.

However, the approaches in Iceland and the United Kingdom to combating revenge porn make clear that the implementation of revenge porn laws, whether criminal or civil, often does not lead to predicted or desired results. Effective revenge porn legislation must protect the rights to both privacy and the freedom of expression, and it must be able to address the ever-evolving cyber means to distribute revenge porn. Lawmakers should keep in mind that privacy is essential to free speech, and that the right to privacy applies equally to all. Privacy, just like freedom of speech, must be defended, and combatting revenge porn is one step in defense of both rights.