Time is ripe for the Criminalisation of “Revenge Porn” in Kenya


The internet has changed the landscape in which a breach of privacy, such as non-consensual pornography, may occur. When misused, technology has the ability to aggravate the harm associated with this breach of privacy. Perpetrators can be anonymous, disconnecting them from their victim and the consequences of their actions, at the same time creating a sense of helplessness for the victim.[1]

Revenge porn, also referred to as non-consensual pornography, describes sharing images or video footage, sexual in nature, without the consent of the subject. Such a situation may originate in a number of ways: through non-consensual recording such as a hidden camera,[2] through a consensual recording that is then stolen,[3] for example computer hacking or a consensual recording that is then intentionally transmitted, without the consent of the subject.[4]

Burris (2010) further expounds her definition of revenge porn to include a   description of an intimate image or video that is initially shared within the context of a private relationship but is later publicly disclosed, usually on the Internet, without the consent of the individual featured in the explicit graphic.

The non-consensual distribution of pornography converts unwilling citizens into sexual commodities subjected to public humiliation.[5] Often, the distributor adds an additional layer of harassment and humiliation by including personal information along with the private image.[6] Including identifying information ensures that internet searches of the victim’s name will produce the image, which increases the chance that the victim’s employers, friends, and family will be exposed to the humiliation.[7]

Available   remedies

Enforcement of copyright

Victims of revenge porn may have some recourse under copyright law, although only if they can establish authorship of the image or video.

Generally, photographs and videos are protected as artistic works under the Copyright Act.[8]  In  a  situation  where the victim of the  revenge  porn  has  contributed to the  works of the  image or  video Copyright they will own the copyright of the image in question.

Infringements could also constitute a criminal offence in the event that the infringer has attempted to financially profit from the publication. Moreover, other international law issues may arise due to the non-territorial nature of the internet, meaning that a claimant’s rights are further limited depending on the jurisdiction in which the images were uploaded.

However, copyright is not a panacea. This is because copyright’s remedies are unavailable to victims who did not take the revenge porn photos or videos themselves.

Breach of Privacy 

The common law tort of breach of confidence   may offer remedies   where private images have been published without consent as this   type of civil action protects confidential information within and outside marriage.[9] In addition, those who share such images or videos could be pursued under breach of confidence since it is possible to imply an obligation of confidence on them even if they are not in a relationship of confidence with the victim.

The  issue  the  is  whether  a person  is entitled  to have  his privacy protected  by the court   since the law  protects violation of a  citizens autonomy  dignity and self esteem. Furthermore the court will consider whether the subject had a reasonable expectation that the images would remain private and confidential.

Images taken by the subject (known as “selfies”) or by the partner and shared with each other through a technological medium such as picture messaging, undoubtedly fall within the sphere of confidential or private information.[10] Tugendhat J in Contostavlos v Mendahum observed that it has long been recognised that details of a person’s sexual life are high on the list of matters that may be protected by non-disclosure orders.

One of the greatest problems facing victims of revenge porn in our    jurisdiction is the   inability of the enforcement authorities   to work fast enough to counter the spread at which this images and videos are shared across the internet. This is  because once the  initial post  has  been   uploaded on a  webpage, the same can  be shared through  social media  platforms like twitter, facebook, whatsapp initially  among  friends  therefore  generating  viral   buzz. The dynamic nature of the Internet means that as soon as infringing content is removed from one source, it “pops up” elsewhere.

Furthermore, civil actions require victims to bring claims under their own name while the revealing photos are still available and searchable online. As a result, civil actions may draw further attention to the very photos victims wished were not public in the first place. As it was shown in the   case of Roshanara Ebrahim v Ashleys Kenya Limited & 3 others [2016] eKLR, the High Court considered a petition filed by Ebrahim who was crowned Miss World Kenya 2015 and subsequently dethroned based on nude photographs of her allegedly given to the Miss World Kenya organisers by Ebrahim’s boyfriend. The court did not however award her damages as she was not able to prove breach of privacy.

Victims of non-consensual pornography are currently not adequately protected from these practices and the resulting harm. Especially as the   civil remedies take a reactive instead of a proactive approach, remedies can most often only be sought after the damage has already been done.[11]

Cyber Security and Protection Bill 2016

The proposed Bill under Section 28 provides to wit:

‘A person who transfers, publishes, or disseminates, including making a digital depiction available for distribution or downloading through a ‘telecommunications network or through any other means of transferring data to a computer, the intimate image of another person commits an offence and is liable, on conviction to a term of imprisonment not exceeding thirty years or fine not exceeding three hundred thousand shillings or both.’

The above section 28 of the Cyber Security Bill provides no intent requirement at all while prescribing publication. This provision is unduly broad, restrictive and open to subjective interpretation and abuse.  At thirty years of imprisonment this is a disproportionate punishment.

Conclusion

Due to the severe, far reaching effects non-consensual pornography has on its victims, it is important that issues surrounding it are resolved fast in order to completely prevent it from occurring. Even though there are civil actions open to the victims such as breach of confidence or copyright infringement suits. They have numerous problems, such as the fact that many of the victims do not have the financial means to pursue legal action, let alone finance the entire litigation process in the event of a loss. Criminalizing revenge porn provides stronger deterrence against future perpetrators, shields victims from the publicity of civil cases, and indicates societal condemnation.

 

Footnotes

[1] Claudia Smith, ‘Revenge Porn Or Consent And Privacy: An Analysis Of The Harmful Digital Communications Act 2015’ (Undergraduate LLB, Victoria University of Wellington 2015).

[2] Ibid pg 5

[3] Ibid

[4] Ibid

[5] Aubrey Burris, ‘Hell Hath No Fury Like A Woman Porned: Revenge Porn And The Need For A Federal Nonconsensual Pornography Statute’ (2014) 66 Florida Law Review.

[6] Ibid

[7] Ibid

[8] Copyright  Act  2001  Laws of Kenya

[9] Mitchell, J., ‘Censorship in cyberspace: closing the net on “revenge porn”’ Entertainment Law Review(2014) 25(8), 283-290 at 284.

[10] Contostavlos v Mendahum [2012] EWHC 850 (QB) at [25].

[11] A v B Plc [2002] EWCA Civ 337 at para. 7.

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