When it was reported yesterday that pictures of at least 40 Irish girls, some as young as 14, had been copied from social media to a pornographic website, the story rang a bell with me,
I run a privacy consultancy which assists people who have received unwanted attention on the internet.
The story reported in the Irish Examiner was very similar to one told to me by a client late last year.
My client and some of her friends had accepted a Facebook request from an account which turned out to have been created using a false name and photograph. The owner of this account began sending them abusive and sleazy messages. Then, he began sending links to a pornographic website where he had posted photographs of them, apparently swiped from their Facebook accounts.
These photographs were accompanied by explicit and degrading commentary, and invitations to other users of the site to add additional comments of their own. In many cases, the womens’ names were included.
This differed from the phenomenon of ‘revenge porn’, whereby intimate images and videos of people are posted online by former partners.
In this case, there was nothing intimate or suggestive about the photographs involved. These were the usual photos one might take at a party or on a night out, and post to one’s own social media. But they had been copied and reposted without the subjects’ consent — and placed in a very different context
Not only that, but the perpetrator felt the need to taunt his victims with what he’d done, by sending them the links via Facebook. In cases like this, the impact is not just emotional. Where the victim’s name is used, Google results for their name can be affected for years, bringing the website to the attention of friends, family, and prospective employers.
The usual reaction of victims in such cases is to contact gardaí. However, it is not always clear whether, under existing law, any offence is committed.
In the case reported yesterday, many of the victims were under 17. Some of those postings might fit within the definition of child pornography. Many will not.
In other cases, this activity might amount to harassment, also a criminal offence. Harassment occurs where someone persistently “follows, watches, pesters, besets, or communicates with” another, seriously interfering with their peace and privacy or causing alarm, distress, or harm to them.
This requirement for “persistence” seems to exclude one-off actions. It’s also unclear whether the offence applies to indirect communications, that is, communications about a person rather than to them.
Unlike the UK, Ireland has no law criminalising publication of intimate images of persons without consent. If such a law is introduced (and it should be), then consideration might be given to including cases like this, where non-explicit images are used, but in a sexual context.
However, prosecution is only an option when the perpetrator can be found. Part of the thrill for my client’s tormentor was the sense of “getting away with it”. Many of his comments on the site revelled in how (he claimed) he met the victims and even spoke to them without them ever suspecting what he’d done. Unfortunately for him, when setting up the Facebook profile, he used his real phone number, thus revealing himself. Others won’t be be so careless.
What many victims need are not prosecutions, but a remedy. They need the image removed from the internet, and may be uninterested in seeing the perpetrator punished.
Indeed, given the publicity attendant on a criminal trial, it may be the last thing they want.
The worst-case scenario for a victim is draw attention to herself via court proceedings, while the image was still available online for all to see.
In some cases, a victim might be able to assert copyright in the image, and have it taken down by the website.
Also, data protection law grants a right to control one’s data (including images) and to object to publication of it without consent. This offers victims a quick, discreet fix, so long as the website is EU-based. Unfortunately, many are not. Some use private hosting — paying a company to register the site on their behalf, thus protecting the true operator’s identity.
Nonetheless, data protection is a massively important protection for the modern citizen’s privacy, though one that is not widely understood. This can be partly attributed to a historic lack of funding for the Data Protection Commissioner.
Ireland is home to many of the world’s social media giants, and has the potential to be a world leader in privacy. The recent increase in funding for the Data Protection Commissioner is an encouraging start, but more must be done to ensure that the right to privacy is available not just to the celebrity, but also to the ordinary citizen.