No More Revenge: Criminalizing Non-Consensual Pornography Through the Convention on Cybercrime
Vol. 40 Associate Editor
Today we rarely think twice about having our personal lives showcased and uploaded online. Quick scrolls reveal pictures from last year’s birthday party, a picture of dinner last night, opinions and views on this candidate or that issue. We choose what to upload and how to display ourselves for a wider audience on a daily basis. Unfortunately, for millions of people each year, most of them women, the choice of what to share online is stripped from them in the most personal and intimate manner. Non-consensual pornography (NCP), also known as revenge porn, in which discontented romantic interests post explicit content online in order to demean, humiliate and harass their former partners, is a cybercrime problem without a uniform solution. Whether or not victims will receive justice is more or less a matter of chance, left to the less than ideal laws of their state and/or jurisdiction, if there are any laws applicable to the subject at all. More than enough time has passed to solidify NCP as the cybercrime it is and take global action to implement a solution. One method of achieving this goal is to incorporate NCP into the Budapest Convention on Cybercrime calling for a common criminal policy against its promulgation. What is the Convention on Cybercrime? Signed in 2001, the Budapest Convention on Cybercrime, known more simply as the Convention on Cybercrime, was the first international treaty to govern crimes committed online. Its drafters were cognizant of the fact that cyberspace has no geographical restrictions and cybercrime cannot be confined to one State’s national boundaries. As espoused in the preamble, the Convention’s goal is to establish “…a common criminal policy aimed at the protection of society against cybercrime, inter alia, by adopting appropriate legislation and fostering international co-operation.” The Convention focuses its attention on criminalizing certain conduct, developing concrete rules of procedure, and fostering international cooperation for the prosecution of cybercrime. Some examples of criminalized conduct within the Convention include breaches of network security, computer-related fraud and forgery, child pornography, and copyright infringements. To date, 57 states have ratified the convention including the United States, Japan, the United Kingdom and France, to name a few. Despite the Convention’s depth, and its claim to be “mindful…of the right to the protection of personal data,” a major cybercrime is noticeably missing–non-consensual pornography. NCP first gained recognition as an issue around the early 2000s and since that time it has steadily expanded into our collective conscious. Global research is lacking, but the research we do have shows the problem is endemic. For example, two separate studies, one in the United States, and one in Australia, found that nearly 10 million Americans and 1 in 5 Australians have been victims of NCP. Now that NCP is a more recognized cybercrime than when the Convention went into effect, it is time to bring the Convention up to speed. How can the Convention be used to combat NCP? States are beginning to incorporate NCP statutes into their criminal codes, but the process has been slow and lacks uniformity. For many victims the only recourse is copyright law, which is a civil remedy and, in most cases, cannot prevent an image already online from continuing to spread. Thus, the incorporation of NCP into the Convention would provide much needed global guidance and encourage uniform standards of criminalization. The next question then becomes how best to frame the criminalization of NCP within the Convention. For this task it is helpful to look to state parties that have already criminalized NCP and how they have done so. In 2014 Japan passed the Revenge Porn Prevention Act, which criminalizes “the provision of a private sexual image of another person without the person’s approval via means of telecommunications to an unspecified number or to many people.” Japan’s law also allows for up to three years imprisonment. Likewise, France has amended its Penal Code to forbid the unauthorized dissemination of sexually-explicit recordings, punishable by up to two years in jail and/or a hefty fine. While the United States lacks a federal law, some of its state laws are particularly exemplary. One prominent example comes from the state of Illinois, whose criminal code makes it a felony to intentionally disseminate a sexually explicit image of another person when the person disseminating knows or should have known that the person in the image has not consented to the dissemination. Punishment for this crime ranges from a hefty fine up to three years imprisonment. The non-profit organization, Cyber Civil Rights Initiative, aided in the drafting of the statute and finds it to be particularly strong for several reasons. These include the fact that it targets anyone who disseminates the images (including not only jilted lovers but random hackers); hefty fines are attached, causing offenders to forfeit any profits from the images disseminated (reducing incentive to post in the first place); and stiff penalties signal more than a light slap on the wrist for offenders (promoting deterrence). With these frameworks in mind, the Convention on Cybercrime should issue an additional protocol concerning the criminalization of NCP committed through computer systems. The actual language of the article can be written in much the same manner as Article 9, on offences related to child pornography, and could incorporate the language of successful laws, such as that of Illinois. The article should call on each party to the Convention to adopt legislative and/or any other necessary measures to make the dissemination of sexually explicit content of another a criminal offence under its domestic law. Moreover, the measure should specify that the offence occurs when the actor putting out the content knows or should have known that the person in the image has not consented to its dissemination. And, while the Convention does not define sexually explicit conduct in its article relating to child pornography, it would serve it well to do so here. A clear definition of sexually explicit conduct will allow for more uniform application and give each state party clear guidance as to what counts as NCP. Criminalizing NCP is not without its challenges. However, victims of NCP deserve an effective solution that recognizes their tangible harm and punishes perpetrators effectively. A global incentive, put forward by the Convention, is a great place to start.
 Danielle K. Citron & Mary A. Franks, Criminalizing Revenge Porn, 49 Wake Forest L. Rev. 345, 347 (2014)  Council of Europe, Details of Treaty No. 185, https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/185 (last visited Nov. 11, 2018).  Dina I. Oddis, Combating Child Pornography on the Internet: The Council of Europe’s Convention on Cybercrime, 16 Temp. Int’l & Comp. L. J. 477, 502 (2002)  Convention on Cybercrime, preamble, Nov. 23, 2001, E.T.S 185  See supra, note 3 at 503  Convention on Cybercrime, Nov. 23, 2001, E.T.S 185  Council of Europe, Chart of signatures and ratifications of Treaty 185, https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/185/signatures?p_auth=ELobxCtg (last updated Nov. 11, 2018).  See supra, Note 4  See Alexa Tsoulis-Reay, A Breif History of Revenge Porn, New York Magazine, (Jul. 21, 2013) http://nymag.com/news/features/sex/revenge-porn-2013-7/  Elle Hunt, ‘Revenge porn’: one in five report they have been victims in Australian survey, The Guardian, (May 7, 2014, 2:30 PM) https://www.theguardian.com/world/2017/may/08/revenge-porn-research-one-in-five-australians-have-been-victims ; Lori Janjigian, Nearly 10 million Americans are victims of revenge porn study finds, Business Insider, (Dec. 13, 2016, 5:03 PM) https://www.businessinsider.com/revenge-porn-study-nearly-10-million-americans-are-victims-2016-12  Maria R. Bjarnadottir, Does the Internet Limit Human Rights Protection: The Case of Revenge Porn, 7 J. Intell. Prop. Info. Tech. & Elec. Com. L. 204, 207 (2016) (“The first specific criminal legislation on revenge porn was passed in the US State of New Jersey in 2003.”).  Id. at 211 (“In 74% of Web Index countries, the Web Foundation found that domestic justice systems are failing to take appropriate actions for violence against women online -revenge porn being listed as an example of such violence.”)  See supra, Note 1  Sayuri Umeda, Japan: New Rwvenge Porn Prevention Act, Library of Congress, (Nov. 26, 2014) http://www.loc.gov/law/foreign-news/article/japan-new-revenge-porn-prevention-act/  Id.  Nicolas Boring, Online Privacy Law: France, Library of Congress, (Dec. 2017) https://www.loc.gov/law/help/online-privacy-law/2017/france.php  750 Ill. Comp. Stat. 5/11-23.5 (2015)  Kim Bellware, Illinois Passes New ‘Revenge Porn’ Law that Includes Harsh Penalties, Huffington Post, (Dec. 30, 2014, 8:11 PM) https://www.huffingtonpost.com/2014/12/30/illinois-revenge-porn_n_6396436.html  Id.  See supra, note 6. The views expressed in this post represent the views of the post’s author only.