Data protection law ‘needs to criminalise revenge porn’

The Data Protection Act should be changed to make social media platforms legally liable for failing to take down revenge porn images, an expert has said.

Revenge porn is sexually explicit media that is publicly shared online without the consent of the pictured individual.

Barrister Fergal Crehan said an amendment to the act could allow victims to take a civil action against sites that fail to comply with orders from the Data Protection Commissioner to remove specified photographs and videos.

Mr Crehan, who specialises in privacy and data protection issues, has been approached by four clients in relation to revenge porn since he set up a consultancy service earlier this year.

Speaking at a conference, Digital Rights Europe 2015, he said the British government, this week, enacted a law in which the sharing of sexual images with intent to harm was a criminal offence.

“This is part of a trend across many of the states in the US to create a criminal offence for this. We don’t, as of yet, have anything like it in Ireland.”

He said criminalisation of revenge porn sends out a message it was “not just a bit of laddish fun” but was “actually closer to a sexual offence”.

He said that revenge porn tended to happen in the aftermath of a breakup, but could take place years later.

The barrister said the closest criminal offence in Ireland relates to harassment but said the behaviour has to be persistent.

“How many times is persistent is a difficult question — it has to be happening repeatedly in order to trigger the offence. That’s a problem for revenge porn, where the first occasion is enough to cause the damage.”

Mr Crehan said the Law Reform Commission was examining the issue. He said unless the resources and training were given to gardaí to enforce the law, change in the law would not do much.

An alternative, or complementary, approach would be to amend the Data Protection Act, he said.

He suggested amending the act to make social media platforms “liable for emotional distress caused by failure to comply” with an order from the DPC to take down the item.

Antóin Ó Lachtnáin, director of Digital Rights Ireland, which organised the conference, welcomed an announcement by Data Protection Minister Dara Murphy of a review of data protection polices with the Government.

He said this would include the contentious issue of the sharing of personal data between arms of the State, which follows concerns in relation to Irish Water.

Mr Murphy told the conference an inter-departmental committee was examining the issue and he would soon announce the establishment of a Data Forum, which he would chair.

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