The chapter summarizes the main policy recommendations of the book: The harm from non-consensual intimate images (NCII) is caused also by platforms and viewers who should both be liable for breach of the claimant’s privacy. The harm from NCII is exceptional so liability should not necessarily be imposed for harm from other user generated content. In reality, hosts and viewers sell and buy the claimant’s images without the claimant’s consent, so they should be strictly liable for the ensuing harm, as those who sell and buy stolen chattel are liable to the original owner. Platforms should actively filter out non-consensual intimate images, regardless of their size. Similar to defences to criminal responsibility for child pornography, promptly deleting unsolicited NCII should prevent civil liability. Liability of each viewer should be to a significant amount, but should not extend to the entire loss.
This chapter proposes to understand child pornography as an extreme and complicated instance of NCII. It (1) establishes viewers’ liability for viewing child pornography under privacy law (as distinct from bespoke statutory provisions), (2) examines whether viewing child pornography could be considered as ‘acting in concert’ and hence lead to full liability of each viewer to the victim’s entire damage from the viewing of their abuse (and possibly also from their initial abuse); (3) argues that the holding in the US Supreme Court in Paroline v United States is compatible with demand-based liability: A viewer could and should be liable to the victim’s injury from the initial abuse, as long as the production of the child pornography was (also) motivated by the prospect of distribution. However, the viewer should not be liable to victims whose images he did not view for harm from either the initial abuse or the circulation of images.
Should digital platforms be responsible for intimate images posted without the subject’s consent? Could the viewers of such images be liable simply by viewing them?
This book answers these questions in the affirmative, while considering the social, legal and technological features of unauthorized dissemination of intimate images, or ‘revenge porn’. In doing so, it asks fundamental socio-legal questions about responsibility, causation and apportionment, as well as conceptualizing private information as property.
With a focus on private law theory, the book defines the appropriate scope of liability of platforms and viewers, while critiquing both the EU’s and US’ solutions to the problem. Through its analysis, the book develops a new theory of egalitarian digital privacy.
This chapter establishes that any immunity beyond the point of notice – a failure to remove the offending content within a reasonable period of time after notice – cannot be reconciled with first principles for imposing liability in torts for the actions of another and with similar situations in which such a question was raised. The relevant first principles are (1) the defendant’s control over the harming activity, (2) fairness – the fact the harm to the claimant was inflicted as part of the defendant’s business, that is, within a profit-motive context and (3) not imposing liability on the defendant would undermine the claimant’s ability to have an effective remedy for the harm she suffered and therefore undermines the claimant’s access to justice. The areas of law establishing liability for post notice failure to avoid the harm from activity directly authored by a third party are: the requirement for publication in defamation law both in the contexts of (1) a secondary publisher and the defence of innocent dissemination; and (2) publication by omission; and the liability of an occupier of land to (3) harms suffered on his land under the tort of negligence; and (4) harms to neighbouring lands under the tort of nuisance.
The chapter defines ‘non-consensual intimate images’ and highlights the potential contribution of platforms and viewers to the breach of privacy of those depicted in non-consensual intimate images. It explains the theoretical framework informing the project; the project’s genealogy; and the book’s contributions in terms of policy, private law theory and tort doctrine.
This chapter addresses two hurdles claimants need to cross if civil claims against viewers are to become viable: evidence and costs. I first discuss the evidentiary hurdle faced by claimants of identifying viewers, which is unique to claims against viewers. I refer to two types of difficulties: identifying those who viewed the claimant’s images; and identifying whether a viewer of a porn website hosting many intimate images, viewed the claimant’s images. The contours of a disclosure order against internet service providers (in the UK, a Norwich Pharmacal Order) for the identity of users breaching the claimant’s privacy will be examined. I will defend the claim that as a matter of ‘poetic justice’, where the alleged wrongdoing is manifested in a serious undermining of the claimant’s privacy, relative little weight should be given to the user’s privacy interest militating against disclosing his identity. Then, I deal with the issue of financial costs, in which I summarize the findings relevant to claims against uploaders and explain the potential differences from claims against viewers.
In this chapter I debunk claims that filtering NCII involves too high costs in terms of either freedom of expression or financial costs, as well as the related claim that such filtering in not technologically feasible. I first focus on Facebook’s filtering practice as reflected in its (untransparent) transparency report. I then evaluate this practice to highlight its shortcoming and delineate the contours of an acceptable and practicable NCII filtering backed by (a more controversial) strict liability for harm from remaining NCII. I discuss penumbra definitional issues of intimacy beyond nudity and cultural differences and scope of liability for harms from these images. My approach diverges from the recent Law Commission’s proposals in their 2002 final report, affording better protection to cultural minorities and taking lessons from medical ethics and law. I also discuss an economy of scales and its potential relevance to smaller intermediaries with a critique of the weight given in recent policy discussions to a means-based test as limiting intermediaries’ potential duties to filter content.
This chapter defends platforms’ strict liability for NCII by pointing to the special policy considerations supporting such strict liability. I defend here a claim for ‘NCII exceptionalism’ so even if one believes that NTD (or possibly stay down) is an appropriate regime for other content, such as defamation and copyright, strict liability, and filtering duties are required and justified for NCII. The case is simple: on the one hand, the harm from NCII is serious and irreparable in a way that the harm from defamation and let alone from copyright is not. It is also systemic and gendered and a type of sexual abuse. On the other hand, the costs of a filtering duty backed by strict liability are much less significant in comparison to cases of copyright and defamation, in terms of both chilling valuable speech and the financial costs of sorting lawful images from unlawful ones.
The argument defended in this chapter both supports a vertical approach to intermediary liability for user content, and criticizes the ‘inverted hierarchy’, entrenched in US law and emerging in EU law, according to which internet intermediaries are more accountable for copyright infringing content than for breach of sexual privacy.
This chapter explains why viewers’ liability could and should be strict, rather than merely fault-based. Building on the discussion in Chapters 4 and 5 it further explains how a property-based understanding of privacy helps justifying both strict liability and its proper limits; thus avoiding excessive liability. Hence, this chapter makes three contributions: doctrinal, normative and conceptual. Doctrinally, it explains that (1) the misuse of private information tort (Privacy) is already understood as a stricter form of liability; (2) that liability under Privacy might be stricter than under breach of confidentiality (from which Privacy sprung) and the justifications for this difference; and (3) Privacy can therefore accommodate viewers’ strict liability for viewing NCII (Part 2). Normatively, it then explains how the concepts of possession, passive behaviour and reliance make viewers’ strict liability to be justified and not excessive (Part 3). Theoretically, it inquires how conceptualizing information as property justifies strict, rather than fault-based, liability for viewing, despite the fact that the act of viewing both misappropriates and destroys value (Part 4); it thus complements the analysis offered in Chapters 4 and 5.
This chapter defends the conceptualization of intimate images as property against the ‘inalienability’ and ‘proliferation of property rights’ critiques by referring to the ‘inalienability paradox’: unless inalienable rights are afforded the stronger remedies available to owners, the rights become more alienable. It then responds to the objection that treating intimate images as property will lead to an undesirable proliferation of quasi/property rights with respect to the same object: reduced alienability is in fact exactly the sought after result for NCIIs. Finally, the considerations relevant to NCII do not necessarily apply to other contexts such as defamation and copyright. In this sense, the argument defended here lends support to the policy move of departing from the EU horizontal approach towards contextual examination of the appropriate scope of intermediary liability. But it also supports a critique of the inverted hierarchy according to which copyright holders have greater rights against intermediaries than NCII victims, while the reverse rule is much more defensible. Nonetheless, the analysis will suggest that the recent move to a de facto strict liability of (certain) hosts under the recent Copyright-Digital Single Market Directive is consistent with general principles governing the liability of merchants selling stolen property.