On Thursday, New York City voted to criminalise revenge porn. That means the nonconsensual dissemination of intimate photos and videos online is now a misdemeanour offence in the city and is punishable by a $US1000 ($1317) fine and up to one year in gaol.
“Council Member Lancman holds press conference to call for criminalizing revenge porn.” (Image: Rory Lancman / Flickr)
The legislation was introduced last year by Council Members Rory I. Lancman and Dan Garodnick. The Public Safety Committee passed the legislation yesterday, and the Council passed it unanimously today, councilman Lancman’s communications director Josh Levitt confirmed to Gizmodo in an email following the meeting. Thirty-eight US states and DC have laws against revenge porn, but up until today, counting statewide and city laws, New York was one of 12 hold-out states where it had yet to be criminalised.
“What seemed crazy to them back in 2007, when I was arguing that this should be criminalized and was a civil-rights violation, all of a sudden became non-crazy,” Danielle Citron, a professor of law at the University of Maryland, told the New Yorker in December 2016, referring to her recommendations to lawmakers which included criminalising revenge porn.
It’s crucial for the legal system to take revenge porn seriously – one survey found that about four per cent of Americans have either been victims of revenge porn or threatened to have their explicit images posted online without their consent.
“I think it’s a very positive sign that NYC is attempting to address this issue, given the gravity of the harm and the fact that the state legislation on this subject has stalled so far,” Mary Anne Franks, a professor of law at the University of Miami School of Law and the Legislative & Tech Policy Director at the Cyber Civil Rights Initiative, told Gizmodo in an email.
But Franks says the bill isn’t perfect – as the legislation states, it is against the law for someone to share another person’s intimate image without their consent, “with the intent to cause economic, physical, or substantial emotional harm,” which Franks said “mischaracterizes the underlying harm of abuse”. She added:
Nonconsensual pornography is first and foremost a privacy violation. It is only sometimes an act of harassment. While this bill does better than some state laws by referring to economic and physical harm as well as emotional harm, it lets perpetrators who engage in nonconsensual pornography for profit or entertainment purposes completely off the hook.
Franks also noted another weakness in the bill: Making an exception for disclosures that are “protected by the first amendment of the United States constitution”. Franks indicates that an intimate photo on its own is protected by this amendment, but sharing it without someone’s consent isn’t. “It is not at all clear what this is supposed to mean,” she said. And lastly, Franks calls out the bill for only classifying revenge porn as a misdemeanour, which “drastically lowers the probability of that these cases will be investigated seriously”.
Strong legislation is important in the fight against revenge porn, but it’s also crucial for tech companies to take the issue seriously. While most major social media platforms have policies in place that prohibit posting intimate photos or videos of someone without their consent, the companies are still figuring out best practices to both prevent and confront the behaviour. Facebook is the latest company to announce a preemptive measure – it now allows users in Australia to preemptively send in photos they don’t want shared online – but it does require a Facebook employee to view your uncensored photo before it is hashed. It isn’t an ideal measure; it still involves entrusting a lot of confidence in Facebook as well as being comfortable with a stranger looking at your intimate images. But, sadly, it is still one of the strongest efforts from a tech company to date that gives users some power in taking precautionary measures.
The legislation passed today will help ensure that there are consequences for these actions beyond just being banned or suspended from a social media platform. And, hopefully, it will discourage the behaviour to begin with. There is room for improvement, but at least it’s a step in the right direction.