Revenge  Porn:    

When  Sexualized  Violence,  

Freedom  of  Expression,    
&  Cyber  Bullies  Collide  
Professor A. Wayne MacKay, CM, QC
Yogis and Keddy Chair in Human Rights

July 26th, 2016

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What  rights  are  we  balancing?
Freedom  of  
Expression  

Individual  
Equality
Privacy
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Balancing  rights  in  context?  
•  Both perpetrator and
victim have Freedom of
Expression & Privacy
rights at stake
•  Equality is particularly at
issue for victims: the risks
of sexting and revenge
porn are deeply
gendered and often
intersect with other
forms of marginalization

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What  is  “sexting”?
•  Sexually explicit text
messages or photo
sharing
•  The word “sexting” is
external to the
phenomenon – it’s a
word used to describe
the phenomenon by
people don’t do it
•  It’s simply free
expression
Image  source:  hKp://cdn.osxdaily.com/
wp-­‐‑content/uploads/2014/11/voice-­‐‑text-­‐‑
iphone-­‐‑ad.jpg
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 Sexting:  some  social  context
According to Professor Shaheen Shariff of the Define the Line
project at McGill:

•  At least 60% of kids between 9 and 12 y.o. have engaged

in sexting
•  It’s the new form of “flirty fun” – digital version of “necking”
•  It’s part of how social & sexual relationships are built
•  But when a girl or woman sends a message to a perceived
boyfriend and he distributes it, the backlash is aimed at her
not him
- “Sexting is ‘starting younger’ warns Prof Shaheen
Shariff”, BBC News, February 10, 2015
http://www.bbc.com/news/uk-wales-31300641

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Sexting:  some  social  context
•  The slut/prude dichotomy

•  Sexting is also increasingly part of consensual adult

relationships in the image-saturated age of the
smartphone; victim-blaming is not useful

•  Girls are walking “the fine line between expressions of

socially acceptable sexualized beauty and being a
‘slut.’”
- Jane Bailey, “A Perfect Storm: How the Online Environment.
Social Norms, and Law Shapes Girls Lives”, e-Girls, e-Citizens
at page 45.

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What  is  revenge  porn?
From US advocacy group End Revenge Porn:

“The term ‘revenge porn,’ though frequently

used, is somewhat misleading. Many
perpetrators are not motivated by revenge or
by any personal feelings toward the victim. A
more accurate term is nonconsensual
pornography [NCP], defined as the distribution
of sexually graphic images of individuals
without their consent.”
http://www.endrevengeporn.org/faqs/

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The  Continuum  of  Violence  
Against  Women  (VAW)
•  Sexting and revenge porn / non-consensual
pornography (NCP) do not exist as silos
•  They are interconnected and part of the
broader culture of sexualized aggression
violence against women (VAW)

Image  source:  hKp://chatsworthconsulting.com/wp-­‐‑content/uploads/2015/01/Why-­‐‑it-­‐‑is-­‐‑

imperative-­‐‑to-­‐‑break-­‐‑down-­‐‑silos-­‐‑now.jpg 8
The  Continuum  of  Violence  
Against  Women  (VAW)
Consent   Rape  
Culture Culture
Street  harassment Intimate  
Partner  
Sex  positivity
Violence

Consensual  sexting Coercive   Sexual  assault

sexting Revenge  porn Jian
Body  positivity Ghomeshi
Sexualized
online Normalization  
Respectful   of  sexual  
harassment
relationships violence
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Image  source:  hKp://whoneedsfeminism.tumblr.com/post/37409884509/i-­‐‑need-­‐‑feminism-­‐‑
because-­‐‑i-­‐‑am-­‐‑sick-­‐‑of-­‐‑the
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The  prevalence  of  victim-­‐‑
blaming
•  “How did you get
yourself into this mess?”

•  Snapchat, Instagram,
Facebook facilitate
sharing our lives visually

•  The focus should be on

the people distributing
Image  source:  hKp://rlv.zcache.com/
non-consensual images
pics_or_it_didnt_happen_retro_poster-­‐‑
rafce5a91cbe4e509401c9434d861ab7_tvw_8byvr_5
12.jpg
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The  scope  of  the  problem
•  From a McAfee survey of
respondents 18-54 years
old in the US:
o  50% of people share
personal and intimate
photos/videos with their
partner and friends (53%
of men and 44% of
women)
o  More than 50% of people
shared their password
with their partner
Image  source:  hKp://4.bp.blogspot.com/-­‐‑
lwjWRkyKz4o/VGOQlI0ScNI/
AAAAAAAAMyU/3X4lpVpxEtk/s1600/
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What  are  the  consequences?
From Dr. Holly Jacobs,
Founder,
EndRevengePorn.com:
•  Tainted Google search
results lead to difficulty
applying for or keeping
jobs
•  Estrangement from friends,
family or a significant
other
•  Harassment and stalking
from others who viewed
the images
•  Dr. Jacobs even legally
changed her name (a
professional hit for an
academic)
Screenshot  from  CBC     13
What  are  the  consequences?
“[W]hen shamings are
delivered like remotely-
administered drone strikes
nobody needs to think about
how ferocious our collective
power might be. The snowflake
never needs to feel responsible
for the avalanche.”
- So You’ve Been Publicly
Shamed by Jon Ronson, p. 56

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What’s  section  2(b)  got  to  do  
with  it?
“Revenge porn and other
forms of online sexual
violence are about much
more than humiliation, harm
to reputation, and privacy
violation. These acts
marginalize and hinder
individual public
participation based on
gender and sexuality.”
- Jane Bailey, eGirls p. 244 Graphic  by  Red  Dot  Design,  2013
hKp://red-­‐‑dot-­‐‑21.com/design/freedom-­‐‑of-­‐‑speech/
freedom-­‐‑of-­‐‑speech/  
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The  role  of  law  &  policy
•  From Respectful and
Responsible Relationships:
There’s No App for That - The
Report of Nova Scotia Taskforce
on Bullying and Cyberbullying
(p. 48):

“Our laws should reflect our

core values and principles and
indicate what we stand for as a
society. [...] [T]he law provides
the anchor for changing both
the offending behaviours and
the related attitudes and
values.”

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The  role  of  law  &  policy
There are legal limits on online behaviour

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 Summary  of  legal  responses
•  Federal: Criminal Law
o  Bill C-13

•  Provincial Statutes
o  Manitoba: Intimate Image
Protection Act
o  Nova Scotia: Cyber-safety Act
o  Labour laws (employee
misconduct)

•  Common Law
o  Stinson case (Ontario)
o  Hulk Hogan
Image  source:  hKp://www.unep.org/
NewsCentre/InsertImage.asp?
ImageSizeID=2&DocumentID=2700&ArticleID
•  Human Right Tribunals =9350

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Federal  responses:  Bill  C-­‐‑13
Definition of “intimate image”
(2) In this section, “intimate image” means a visual
recording of a person made by any means including a
photographic, film or video recording
(a) in which the person is nude, is exposing his or her genital
organs or anal region or her breasts or is engaged in
explicit sexual activity;
(b) in respect of which, at the time of the recording, there
were circumstances that gave rise to a reasonable
expectation of privacy; and
(c) in respect of which the person depicted retains a
reasonable expectation of privacy at the time the offence
is committed.

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Federal  responses:  Bill  C-­‐‑13
March 24, 2016:

•  Winnipeg man, 29, becomes the first person

convicted under the new law
•  Given a 90 day sentence to be served on
weekends

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 It’s  not  just  an  adult  problem...
•  Consider the role of non-consensual pornography in
these criminal cases:

Amanda Todd (2012) Retaeh Parsons (2013)

 Provincial  responses
Nova Scotia Cyber Safety Act:
•  Tort of cyberbullying
•  Protection orders
•  Cyberbullying prevention
orders
•  Cyber SCAN Investigative Unit
•  Liability for cyberbullying
•  Bystanders (participating/encouraging)
•  Parent of defendant
•  Principals
•  Struck down as unconstitutional in December 2015
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 Provincial  responses
•  Almost one year after the release of the Task Force Report, in
April, 2013 the tragic suicide of Rehtaeh Parsons at age 17
became public. She was sexual assaulted by four
classmates from Cole Harbour High. A photo of this event
that circulated online and subsequent cyberbullying were
cited by her mother as critical contributors to her death.

•  The Parsons case received international attention and

sparked a groundswell of public opposition to the response
(or lack thereof) of both the NS Education and Justice
systems.

•  In response, the Legislature passed The Cyber-safety Act

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Provincial  responses
Manitoba Intimate Images Act:
•  Creates a civil tort of knowingly or
recklessly distributing intimate
images without consent - s. 11(1)
•  Expectation of privacy isn’t lost even
if the image was initially created or
shared with consent - s. 11(2)
•   Section 13 creates a public interest
defence
•  Publication bans for any party if it is
in the interest of justice - s. 15

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Common  law  responses
•  Ontario, January 2016 - Doe 464533 v N.D. (“The
Stinson Case”)

o  The Court found for the plaintiff on four torts:

1)  Breach of confidence
2)  Intentional infliction of mental distress
3)  Public disclosure of embarrassing private facts
4)  Tort of privacy

o  Damages awarded: $100, 000

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Common  law  responses
•  Florida, March 2016 –
Hulk Hogan v Gawker
o  Hulk Hogan, sued
Gawker for distributing
a sex tape of him and
a friend’s wife
o  Damages awarded:
$115 million
o $55 million for
economic harm
Image  source:    hKps://upload.wikimedia.org/
o $60 million for wikipedia/commons/0/0e/Hulk_Hogan.jpg

emotional distress
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 Remedies
•  Can range from prison time to damages for pain and
suffering

•  Plaintiffs really want the images taken down and

removed from the internet – the Right to be
Forgotten?

Image  source:  hKp://www.reflectionsfromme.com/wp-­‐‑

content/uploads/2015/09/Erase-­‐‑The-­‐‑Past-­‐‑Dreamstime.jpg   27
Privacy  in  the  Digital  Age
•  No free-standing right to
privacy in the Charter

•  Sections 7 and 8 have

been used for certain
privacy rights

•  Limited privacy statutes

Image  source:  hKp://www.paretologic.com/images/
online_privacy.jpg  
•  Conceptualizing privacy
as a human right

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Privacy  as  a  Human  Right      
 

•  PEI case
•  Model case

Image  source:  hKps://c1.staticflickr.com/

3/2388/2317847686_c1996c35b.jpg
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 Cyberbullying  &  cultural  change
•  Monica Lewinsky calls it an “empathy deficit”
•  Empathy is difficult – if not impossible – to legislate,
but empathy-building is vital to changing the
current culture

Lewinsky in her
March 2015
TEDTalk

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 Sources:
•  Responding to revenge porn: Gender, justice and online legal impunity, by Michael Salter (2013)
•  “Being A Victim of Revenge Porn Forced Me To Change My Name -- Now I'm An Activist
Dedicated To Helping Other Victims”, Dr. Holly Jacobs, xojane, November 13, 2013
http://www.xojane.com/it-happened-to-me/revenge-porn-holly-jacobs
•  "Civil Liability Found for ‘Revenge Porn’ in First-Instance Case”, Canadian IT Association, February
4, 2016
http://www.it-can.ca/2016/02/04/civil-liability-found-for-revenge-porn-in-first-instance-case/
•  “Canada’s First Revenge Porn Convict Gets 90 Days in Jail”, Tamara Khandaker, Vice News,
March 24, 2016
https://news.vice.com/article/canadas-first-revenge-porn-convict-gets-90-days-in-jail?
utm_source=vicefbca
•  “Hulk Hogan Awarded $115 Million in Privacy Suit Against Gawker”, The New York Times, March
18, 2016 http://www.nytimes.com/2016/03/19/business/media/gawker-hulk-hogan-verdict.html
•  McAffee Love Relationships and Technology Survey (2013)
https://blogs.mcafee.com/consumer/love-relationships-technology-survey/
•  Lovers Beware: Scorned Exes May Share Intimate Data And Images Online, McAffee Security
http://www.mcafee.com/us/about/news/2013/q1/20130204-01.aspx
•  Michael Power, Revenge Porn an Canadian Law
http://michaelpower.ca/2015/01/revenge-porn-canadian-law/
•  ‘Revenge porn’ court judgment could serve as deterrent, says privacy law veteran
https://ca.news.yahoo.com/blogs/dailybrew/revenge-porn-court-judgment-could-serve-
as-145522420.html
•  Revenge Porn by Emily Blake, http://roseproject.ca/revenge-porn/#_ftn6
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