Revenge Porn – Options for Victims

We have previously written about Revenge Porn and some of the legal options available to victims of Revenge Porn, either under the Criminal Code of Canada, or by way of tort-like actions taken under relatively new Provincial Legislation, the Protecting Victims of Non-consensual Distribution of Intimate Images Act.  However, while legal action under these two pieces of legislation seek to punish the offender, and potentially provide monetary reparations to the victim, they do not aid individuals in attempting to eliminate any trace of the offending images or videos.

There are potential options available to victims of Revenge Porn when trying to eradicate or stop the spread of their images or videos, but the possibilities often depend on what form the Revenge Porn takes.

“Revenge Porn” is truly media-speak; the adoption of an attention grabbing title that includes a number of different types of offending actions.  Most people are familiar with the stories of hackers leaking nude images of celebrities such as Jennifer Lawrence and Kirsten Dunst, or of vengeful individuals posting nudes or home-made pornographic films of their exes online.  However, these are not the only types of actions that fall under the umbrella of “Revenge Porn”.  Rather, the Criminal Code and the legislation in Alberta capture any act in which one person distributes “intimate images” of another person, without that other person’s consent.  Intimate images includes both videos and photos of an individual who is nude, exposing their genitalia or breasts, or engaged in sexual activity.  Under the legislation in Alberta, the meaning of “distribute” includes knowingly publishing, transmitting, selling, advertising or otherwise making the image available to a person other than the person depicted in the image.

On the basis of the above, offences within the area of “Revenge Porn” include not only the uploading of intimate images to the internet, but also include such simple acts as forwarding text messages to friends that include nude images of a third party.  This latter action has a specific significance as it has become more an more prevalent for high school and college aged people to send “nudes” of themselves to those they are dating, or even interested in dating.  The ease at which the recipient of these photos is able to forward the “nudes” to other people can lead to not only difficulty in stopping the spread of the photos, but also to the types of bullying that have made headlines across Canada in recent years.

There are options for what can be done to try to remove the images from websites, or to stop the spread of images across social media or text and email.   In North America, both the United States and Canada have legislation that serves to protect the unlawful distribution or hosting of copyrighted images.  In the USA, this is called the Digital Millennium Copyright Act (the DMCA), and it allows individuals to submit Takedown Notices to website providers in respect of copyrighted materials that have been posted without consent of the copyright holder.  In Canada, we have what is referred to the “Notice and Notice Regime,” a potential remedy under the Canadian Copyright Act, which permits for copyright holders to provide notice to an Internet Service Provider of a copyright violation – this Notice is then passed on to the owner of the website that is alleged to be hosting the copyrighted materials.

This is relevant to the removal of intimate images, as those images can typically be claimed as “copyrighted” material by the person or persons depicted in the images.  As a result, victims of Revenge Porn are able to submit a DMCA Takedown Notice if the images are hosted in the USA, or a Notice and Notice under the Copyright Act if the images are hosted by a provider in Canada.

If an offending image or video is hosted by internet providers outside of North America, it will often depend on the Country or region in which the image or video is hosted.  For instance, for member nations of the European Union, takedown requests are governed by the Electronic Commerce Directive, which permits for Notices of copyright violation and Takedown demands to be issued in EU Nations.  If the images are hosted outside of North American or the European Union, it will typically depend on the legislation or legal precedents in any given Country.  The University of Standford Law School has created a multidisciplinary project attempting to track the laws across the world as they relate to Internet Service Provider’s liabilities and obligations, and the digital rights of internet users.  This project has been consolidated into an interactive map that allows for ready access to the relevant laws for most nations.

However, there are always jurisdictions in which there are very few, if any laws, that relate to copyright infringement, or other illegal activities on the internet.  Quite often, the websites that publish revenge porn will host their sites on domains that are known to be outside of any serious regulation, such as the old Soviet Union “.su” domain that is still in existence today and is well-known for hosting illicit websites.  In such instances, while copyright takedown notices may not have any effect, action can still be taken to attempt to block the webpages or content from appearing on search engines.  So while the content may still exist on the webpage, steps can be taken to remove it from appearing on search engines, thereby limiting its exposure to anyone searching a victims name or details.  All large search engines, such a Google and Bing, and even smaller engines, provide the availability of submitting removal requests, whereby an individual can file a formal request that content or a webpage be removed, or filtered out of any number of search strings.  Even if the content is hosted in countries that have copyright regulations, redundant requests for removal of the content from search results is often useful in eradicating easy location of the webpage or content.

While taking the above steps can be very helpful in limiting exposure and continued publication of the images in question, the reality is that it is almost impossible to entirely remove all trace of images once they have been posted on the internet.  This is usually as a result of users downloading the images or videos and then reposting them on different websites.  This problem has been recognized by a number of companies who now offer services to assist victims of Revenge Porn in effectively “burying” the images or videos.  As most Revenge Porn is posted with the victims name or some other identifying information, these companies engage in a campaign of positive social media, flooding the internet with positive images, blogs, and postings about the victim.  Essentially, these companies operate to optimize these positive postings for search engine recognition.  In doing so, they aim to bury the negative search results relating to the revenge porn to the bottom of the search engine results.  This strategy is predicated on the recognition that most people do not view beyond the first few pages of search engine results, and therefore the goal is to relegate the search results linking to the offending images or videos to the very bottom of the results to severely limit their visibility.

The above options are all useful in attempts to remove images and videos, or the searchability of images and videos from the internet.  However, these options are not available when the distribution of these images or videos occurs by way of text message or email.  In such a case, it is usually more apparent to identify the originator of the first message or email that distributed the images or video in question.  In such a case, litigation and a formal report to the police is the most effective means of dealing with the primary offender.  However, this leaves any number of people who have received the image and may or may not have further distributed the image or video.  At Mincher Koeman, we have found that the best way to address such circumstances is to engage in an aggressive campaign of serving the recipients of such text messages with Cease and Desist letters threatening legal action, and demanding disclosure of all individuals to whom the image was further disseminated.  Under the real threat of being included in a law suit or being subject to criminal charges, most people are usually receptive to such demands and are prepared to not only delete the image or video, but also disclose to whom they have further sent the image or video.  While it may be time consuming, it can be possible to track down the individuals to whom the images have been sent, and who has further distributed those images or videos.

There is no perfect answer for dealing with Revenge Porn, as once the images are sent or posted online, some damage has usually been done.  However, there are options for attempting to limit the amount of damage and the further spread of the images.  At Mincher Koeman, we have the experience in dealing with matters relating to Revenge Porn and assisting victims in not only pursuing litigation against those who have posted or distributed sensitive images and videos, but through our experience and professional relationships with third parties in the tech industry, we are also able to help victims of Revenge Porn in pursuing the websites hosting the images and videos, removing the content from search engine results, and tracking the distribution history and the people involved in text and email chains that disseminate sensitive images and videos.

If you have been a victim of Revenge Porn and are looking for help, Mincher Koeman has the unique experience and skills to assist you in asserting your legal rights and limiting your exposure.  Give us a call at (403) 910-3000, or email us at assistant@mincherkoeman.com.