The publication of online sexual imagery without consent raises several human rights issues. Most notably, it threatens the right to private life and the right to the protection of one’s image under article 8 of the European Convention on Human Rights. In Von Hannover v Germany (no. 2), the Grand Chamber of the European Court of Human Rights held:
[A] person’s image constitutes one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers. The right to the protection of one’s image is thus one of the essential components of personal development. It mainly presupposes the individual’s right to control the use of that image, including the right to refuse publication thereof…
In recent years, technological advancements have significantly increased the distribution of sexual imagery online. Online pornography has also become an easy medium to share and distribute sexual content of women and children without their consent. On 14 December 2020, the popular adult site Pornhub withdrew more than nine million videos and sexual images following an investigation. The investigation concluded that the vast majority of the individuals featured on the site were underage and trafficked for the purposes of providing sexual content. This incident has once again raised concerns about the dangers of the distribution and of sexual imagery online.
In Ireland, legislative developments have been made in recent weeks to prevent the distribution of sexual imagery online without consent and to protect an individual’s right to privacy. Currently, several online forums are actively circulating thousands of sexual images of Irish women and alleged minors without their consent. However, the distribution of any image featuring an individual under the age of 18 engaging in sexual activity is considered child sexual abuse under the Child Trafficking and Pornography Act, 1998 . Victims Alliance, an advocacy group, is currently trying to identify the victims who are featured on these forums. According to Liam Hayden, the co-founder of Victims Alliance, one forum had almost 500 regular users on the site.
For many years, the Irish Labour Party campaigned to update Irish legislation to criminalise online harassment, bullying, and so called “revenge porn”. This type of sexual online harassment consists of the distribution of intimate or explicit images of an individual without consent and is often perpetrated by an ex-partner. This form of sexual harassment has become more frequent in Ireland in recent years. In 2017, A bill was proposed to update legislation pertaining to the publication of sexual imagery online without consent.
On 28 December 2020, the Harassment, Harmful Communications and Related Offences Bill 2017, also referred to as “Coco’s Law,” was signed into law by the President Michael D. Higgins. As the Bill had been signed into law, the relevant legislature has become known as Harassment, Harmful Communications and Related Offences Act 2020.
According to article 2(1) of the Act, it will be inconsequential whether an individual may have consented to the taking of an image; as long as the image is published without their consent, it will be considered to be a criminal offence when:
[A] person who distributes, publishes or threatens to distribute or publish an intimate image of another person—
(a) without that other person’s consent, and
(b) with intent to cause harm to, or being reckless as to whether or not harm is caused to, the other person, is guilty of an offence.”
This legislation states that if there is visible "intent to cause harm,” the criminal offence carries an unlimited fine or a prison sentence of up to seven years. However, if it has been proven that there is no intent to cause harm, the same offence will be punishable by a maximum penalty of €5,000 or 12 months imprisonment.
The new legislation also states that if an ex-partner is involved in the publishing or distribution of sexually implicit content online without the consent of the victim, this will be considered as being an “aggravating factor” by the Irish Courts. Furthermore, this new form of legislation has updated existing Irish laws concerning harassment by widening the scope of the offence to cover a range of varied methods of communication, including information that is transmitted, recorded, displayed, or stored by electronic means.
It is evident that the Harassment, Harmful Communications and Related Offences Act 2020 is a significant advancement in Irish legislation and equally, a vital step towards preventing undue pain and suffering caused by online sexual harassment for victims and their families.
Cliodhna is an Irish Law student having recently completed a BCL (Law and French) at University College Cork and an LLM (Law and Criminology) at Maastricht University.