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Revenge pornography can have very harmful effects on the lives of victims. When sexual images are shared online, it is incredibly difficult to remove this from the Internet. A victim can be feeling the impact for a long time as it can lead to psychological and reputational damage, while the perpetrator can often continue their lives without any negative effect. For this reason, it is of great importance that the creation and sharing of revenge pornography is criminalized. The debate regarding the criminalization of revenge pornography is taking place in different countries. Recently, the discussion was fuelled in Ireland after thousands of explicit images of women were leaked.[1] A petition to make revenge pornography a criminal offence in Ireland has been signed thousands of times.[2] However, when revenge pornography gets criminalized, what should such legislation look like? Would article 139h of the Dutch Criminal Code be a good example for other countries?

In 2019, the Dutch legislator added a provision to the Dutch Criminal Code that criminalizes revenge pornography: article 139h of the Dutch Criminal Code. Because revenge pornography infringes the privacy and can negatively affect the life of the portrayed person, the legislator was of the opinion that revenge pornography needed to be criminalized. The provision criminalizes the creation, possession and sharing of pornographic images that are created or shared without the consent of the portrayed person. Even though the creation of this provision is a good first step in the fight against revenge pornography, the provision has its flaws. The provision strongly focusses on the intent of the perpetrator, instead of on the harm that is done to the victim. This is problematic for two reasons. Firstly, the intention of the perpetrator can be very difficult to prove, especially when a sexual image is shared online without any comment besides it. Secondly, it disregards the wrongs that are done to the victim. The harm that has been done to the victim is not dependent on the intention of the perpetrator. Instead it is dependent on the fact that their sexual image is created or shared without their knowledge or consent. The focus on the intention of the perpetrator creates a risk that certain cases will fall outside the scope of this provision, even when significant harm has been done to the victim.[3]

Another issue linked to article 139h of the Dutch Criminal Code is that it is unclear whether new forms of revenge pornography, such as non-consensual deepfake pornography, fall within the scope of the provision. The possibility to create realistic deepfake pornography may make the issue of revenge pornography even bigger, because it allows the creator to portray any person in sexual images. It is important that both “real” and manipulated sexual images are criminalized, because both these types of sexual images can do great harm to the persons who are portrayed in these images. The legislator has stated that the provision is created in such a way that new and future types of publishing sexual images with the intent to harm the portrayed person will also fall within the scope.[4] However, this is quite a vague statement, and because it is still a new provision it is unclear how this will actually apply in practice. This led different Dutch politicians to argue that there is a need to specifically criminalize the sharing of manipulated sexual images.[5]

It thus shows that article 139h of the Dutch Criminal Code is already a step in the right direction in the fight against revenge pornography. However, the provision in its current form should not be used as an example in other countries. Changes to article 139h of the Dutch Criminal Code are necessary in order to have a provision that provides a well-fitted response to all forms of revenge pornography. Instead of focussing on the intention of the perpetrator, the legislator should focus on the harm that is done to the victim. As stated before, revenge pornography can have a big impact on the life of the portrayed person, and therefore it is important to focus on the harm done instead of the intent of the perpetrator. The perpetrator could have had no negative intent whatsoever when sharing the sexual images, but it can still have a negative impact on the victim’s life, which should not be overlooked just because the perpetrator had no negative intent. Furthermore, the provision has to expressly include both “real” sexual images and manipulated sexual images within its scope. This will create certainty that novel forms of revenge pornography are also included within the scope of the provision.

The existence of article 139h of the Dutch Criminal Code is a great step in the right direction, but we have not yet reached the finish line. The fight against revenge pornography is an ongoing battle, and it is of great importance to keep up with the developments that are taking place regarding revenge pornography. Furthermore, solely criminalizing revenge pornography is not sufficient. It is of great importance that victims have the possibility to get the sexual images removed from the Internet as well. In order to do this, the legislator will have to work together with other actors as well, such as social media companies. It is of great importance to cooperate and focus on providing possibilities to remove the content from the Internet as well, as this can significantly limit the harm that is being done to victims. A criminal provision is important, but not the sole solution to fix the issue of revenge pornography.

 

[1] B. Dawson, ‘Thousands of explicit images of Irish women leaked’ (21 November 2020) The Independent. Access online: https://www.independent.co.uk/news/world/europe/ireland-revenge-porn-images-leak-b1759685.html (last accessed on 28 December 2020).

[2] Link to petition to make revenge porn a criminal offence in Ireland: https://www.change.org/p/irish-justice-department-make-revenge-porn-a-criminal-offence-in-ireland (last accessed on 28 December 2020).

[3] M. Goudsmit, ‘Criminalising Image-based Sexual Abuse: an Analysis of the Dutch Bill against Revenge Pornography’ (2019) 68 Ars Aequi 442.

[4] Kamerstukken II, 2018/19, 35080, 3, p. 5.

[5] H. Keultjes, ‘CDA en GroenLinks: Maak verspreiden gemanipuleerde naaktbeelden strafbaar’ (25 November 2020) Het Parool. Access online: https://www.parool.nl/nederland/cda-en-groenlinks-maak-verspreiden-gemanipuleerde-naaktbeelden-strafbaar~b5b779f5/ (last accessed on 28 December 2020).

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