Privacy law, gender justice and end users' liability: 'revenge porn' and beyond

This research project, which was supported by a Leverulme Fellowship explores the liability of viewers and intermediaries (such as website operators and social media platforms) for ‘revenge porn’ – the unauthorised dissemination of intimate images. The theoretical framework is informed by three distinctive features: the gendered nature of the phenomenon (social); the relevance of technology to harm and perpetration (technological) and the potential overlap between (sexual) privacy and defamation – the area of law protecting reputation – and between privacy and data protection.

The inquiry highlights four points: (1) The harm from revenge porn is unique; Therefore, both the complete immunity under American law, and the notice and take down EU regime are inappropriate to tackle revenge porn cases. (2) When private information is understood as property, and posting of unauthorised intimate images as theft, the analogy with conflicts over title between remote parties clearly supports strict liability of platforms. (3) First principles (control over harming activity; for profit business model; victim’s right to effective remedy) and analogy to other situations involving intermediary liability (offline publication in defamation, nuisance and occupiers’ liability in negligence) show that the complete intermediaries’ immunity under American law cannot be supported. (4) ‘Revenge porn’ is a spectrum which includes at the extreme end child pornography. Both violations involve mass sexual abuse and complex causation and attribution mechanisms, including the need to apportion liability of viewers.

Tsachi Keren-Paz and Richard Wright, ‘Liability for mass sexual abuse’ (2019) 56 American Criminal Law Review 185-233