Sexting and Revenge Pornography

Legislative and Social Dimensions of a Modern Digital Phenomenon

Andy Phippen, Maggie Brennan

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781351369749
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book considers the rapidly evolving, both legally and socially, nature of image-based abuse, for both minors and adults. Drawing mainly from UK data, legislation and case studies, it presents a thesis that the law is, at best, struggling to keep up with some fundamental issues around image based abuse, such as the sexual nature of the crimes and the long term impact on victims, and at worst, in the case of supporting minors, not fit for purpose. It shows, through empirical and legislative analysis, that the dearth of education around this topic, coupled with cultural norms, creates a victim blaming culture that extends into adulthood. It proposes both legislative developments and need for wider stakeholder engagement to understand and support victims, and the impact the non-consensual sharing of intimate images can have on their long-term mental health and life in general. The book is of interest to scholar of law, criminology, sociology, police and socio-technical studies, and is also to those who practice law, law enforcement or wider social care role in both child and adult safeguarding.

1 Call It What It Is – Image-Based Abuse

This book focuses primarily on the non-consensual sharing of intimate images and videos or image-based abuse – perhaps better known as sexting and revenge pornography – as well as the challenge society faces in supporting victims, the complexities in legislation, the difference between legislative responses and grassroot behaviours and an analysis of how we can actually move forwards in our thinking, policy and legislation in this area. Ultimately, this book will contribute to getting to a place where victims are supported, potential abusers are deterred, abusers are punished and held accountable and stakeholders in this space are informed about how to tackle the social challenges presented by the non-consensual sharing of intimate images among both minors and adults.

In order to address these two social phenomena, the majority of legislative and policy discussion resides within the UK. This is primarily due to the fact that all authors have actively researched or practised in this jurisdiction and that is where the empirical evidence base for this work lies. However, throughout the book, examples of other jurisdictions will also be brought in to illustrate similarities and differences in legislation and policy approaches – the legislative and practice challenges faced as a result of the non-consensual sharing of intimate images are certainly not constrained to the UK. We should also stress, as with any text that explores legislation and practice in a fast-moving field, the evidence and analysis presented are accurate at the time of writing. However, one cannot predict policy changes that might affect this field, and while, where possible, issues as presented in a generic way using the current state of things as a lens with which to consider the nature of image-based abuse and how society responds to it.

One of the fundamental tenets of this book is that policy needs to evolve from evidence, and without a good understanding of the context, legislation will always fall short. We risk falling back into legislative hyperactivity,¹ which was so strongly criticised as being endemic in the last UK Labour government, where legislation was thrown at any social ill because it was easier than addressing the broader stakeholder engagement to tackle the problem, which in the main failed to tackle the issues it aimed to legislate against. Is legislation intended as a means to promote ethical and moral practice, or to punish those who wish to act in an immoral manner? If one does not understand the complexity of the social context in which issues such as sexting and revenge pornography exist, legislation will always fail on both counts.

1 Stevenson, K., & Harris, C. (2008). “Inaccessible and unknowable: Accretion and uncertainty in modern criminal law”. Liverpool Law Review, 29(3), 247–267.

In this book, the social contexts of both sexting and revenge pornography are explored, before considering the legislation currently available to protect victims and punish abusers. Once these two aspects have been established, the third part of the book will consider where and why legislation is failing, how it needs to be updated and what are the broader policy areas that need to be tackled in a more pragmatic manner such that all stakeholders in online safeguarding are brought to bear in tackling these issues. Throughout the book, considerable empirical evidence will be drawn upon from the work of some of the authors – from surveys, qualitative discussions, workshops and ethnographic experiences with victims, as well as potential victims and abusers, and others who are stakeholders in this space. As a result of presenting a robust evidence base one would hope the policy direction can move forwards in this area because it has stagnated for many years, arguably as a result of focusing on the act, rather than wider social aspects of image-based abuse among both minors and adults. While the generation and distribution of an intimate image or video are central to both sexting and revenge pornography, prevention, victim support and appropriate punishment for abusers should look far more broadly. One of the authors of this book began working with young people around the then-emerging “sexting” phenomenon in 2008. After ten years working with young people around sexting, one thing is very clear – attitudes towards sexting by young people have changed little in this time. More specifically:

1. 1. You shouldn’t do it, because it's illegal
2. 2. If you self-generate and send an image, it’s your fault if it distributed without your consent
3. 3. Once it’s out there, there is nothing you can do
4. 4. The victim deserves the abuse they receive if an image or video of them gets shared further

During this ten-year period, there has been much policy debate around teen sexting and how it might be prevented, there have been many resources developed for education and many young people have sat through many assemblies and classes in schools giving them clear messages around reasons not to self-generate and send intimate images, yet they still do it, and they still have the same attitudes about it. Something is clearly failing.

In order to understand what is failing, it is worthwhile taking a step back and reflecting on more fundamental issues affecting this policy space. This provides a useful starting point for discussion and one that will be returned to many times throughout this book.

It is acknowledged that the context of sexting and revenge pornography is based in the broader domain of “online safety” – the theory and practice of ensuring that citizens can engage with online technology and services safely without fear of abuse, threat or harm. Work in this field is well established in both policy and practice and has been thoroughly reviewed elsewhere (for example, in²). However, there are a number of aspects that we can draw from this work that are useful starting points to exploring sexting and revenge pornography. Drawing upon previous work, and also a collective expertise of over 40 years working as academics, legal and educational practitioners in the field, several key observations can be drawn from the broader online safety space which is shared within the problem domain of this book:

2 Phippen, A. (2016). “Children’s online behaviour and safety: Policy and rights challenges”. Springer.

1. 1. Policy directions will generally focus upon prohibitive approaches because they are politically the least contentious (although arguably also the least successful)
2. 2. Just because technology facilitated an issue, it doesn’t mean technology will prevent social problems from occurring (although it can help)
3. 3. In a vacuum of evidence, opinions become an adequate substitute for facts
4. 4. Everyone uses digital technology; therefore, everyone has an opinion on how it might best be “made safe”
5. 5. Statutory pressure can sometimes result in a “do something” attitude

Policy frequently drives practice in this field, yet it still is, of itself, reactive to social behaviours. While one of the authors has been researching in the field of online safety since 2006, exploring, in particular, young people’s use of technology and how it impacts on their lives, policy response can take longer. Arguably, the UK only saw clear statutory guidance around “online safety” in schools in September 2016, when the government published its “Keeping Children Safe in Education” statutory guidance for schools and colleges on safeguarding children and safer recruitment.³ Within it, for the first time, it was made clear that schools had responsibilities to ensure children were protected from risks associated with online technology, that school governors were responsible for ensuring that such practice took place and that staff were up to date in their knowledge in the area. In addition, it listed a collection of resources that were “not exhaustive but should provide a useful starting point” – the starting point being links to typical websites that provided information and resources around online safety.

3 UK Government (2019). “Keeping Children Safe in Education 2019 Update”. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/835733/Keeping_children_safe_in_education_2019.pdf

Policy in this particular area highlights a number of key issues related to the role of legislation in controlling access to content or managing online social behaviours:

1. 1. “Do something, anything!!”
2. 2. Implement legislation that might not be possible with the technology available
3. 3. Rapidly implement legislation without understanding the broader social context
4. 4. Use older legislation to tackle something for which it was never intended
5. 5. Legislation has knock-on effects that impact on the rights of those wishing to engage in legal behaviour online
6. 6. The legislation fails to achieve what it set out to do

Or, to put it another way – the Politician’s Syllogism:⁴

4 Chen (2007). “The politician's fallacy and the Politician's Apology”. https://devblogs.microsoft.com/oldnewthing/20070226-01/?p=27853

“We need to do something”

“This is something”

“Let's do this!”

This knee jerk policy approach has existed for a quite a while and has been identified in many times in geek culture. The “Four Horsemen of the Infocalypse” is a term coined by Timothy C May⁵ to reflect the typical policy response to any technological innovation a government might wish to control or to win over public opinion to back tougher regulation – claim the technology is used by one or more of the Four Horsemen Infocalypse – terrorists, paedophiles, drug dealers and money launderers – and one can win the public over. While May introduced this concept related to controlling the use of encryption by the public (the ripples of this can still be seen to this day, for example, with Amber Rudd’s claim that “ordinary people” don’t need to use encryption in 2017⁶ and the UK Government’s recent unease at Facebook’s proposed use of end-to-end encryption in its Messenger platform⁷), this has been applied to many technological innovations, such as Tor, WhatsApp, Bitcoin, peer-to-peer file sharing and social media in general. The general approach is similar every time:

5 May (1994). “Crypto Anarchy and Virtual Co...

Table of contents

• Cover
• Half-Title
• Title
• Copyright
• Contents
• Foreword
• 1 Call It What It Is – Image-Based Abuse
• 2 Sexting in Context
• 3 Revenge Pornography in Context
• 4 Where Is the Legislation?
• 5 Is the Legislation Working?
• 6 Third-Party Responsibilities
• 7 What About Education?
• 8 Conclusion
• Index