Revenge porn

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Revenge porn is sexually explicit images or video that is distributed without the consent of the subject.[1] The making of sexually explicit images or video may be made by a partner of an intimate relationship with the knowledge and consent of the subject, or it may be made without their knowledge. The possession of the material may be used by the partner to blackmail the subject into performing other sex acts, or to intimidate them from breaking off the relationship. In the wake of civil lawsuits and the increasing numbers of reported incidents, legislation has been passed in a number of countries and jurisdictions to outlaw the practice, though approaches have varied. The practice has also been described as a form of psychological abuse and domestic violence.[citation needed]

The term "revenge porn" generally refers to the uploading of this sexually explicit material to humiliate and intimidate the subject, who has defied the partner and broken off the relationship.[1] The term is also often misused to describe non 'revenge' scenarios, including nonconsensual pornography distributed by hackers or by individuals seeking profit or notoriety. The images are usually accompanied by sufficient information to identify the pictured individual, typically their name and location, and can include links to social media profiles, home addresses and workplaces.[2][3] Victims' lives can be ruined as a result, the victims exposed to cyber-stalking and physical attack as well as facing difficulties in their workplace should their images become known as a result of routine checks by employers. Some have lost their jobs, while others have been unable to find work at all.[4] Copyright law cannot help if the person who publishes the image also made it.[5]

Jurisdictions which have passed laws against revenge porn include Israel, Germany, the United Kingdom, twenty-seven states of the United States,[5] and the Australian state of Victoria.

Background[edit]

In the 1980s, Hustler magazine began a monthly feature of reader-submitted images of naked women called "Beaver Hunt".[6] Beaver Hunt photographs were often accompanied by details about the woman, like her hobbies, her sexual fantasies, and sometimes her name.[6] Not all of the women featured in Beaver Hunt submitted their own images and several women sued the magazine for publishing their photographs without their permission.[7]

Two decades later, Italian researcher Sergio Messina identified “realcore pornography”, a new genre consisting of images and videos of ex-girlfriends distributed through Usenet groups.[8] In 2008, amateur porn aggregator XTube began receiving complaints that pornographic content had been posted without subjects’ consent. Several sites began staging consensual pornography to resemble revenge porn, as well as hosting "authentic" user-submitted content.[8][5]

Revenge porn began garnering international media attention when Hunter Moore launched the website IsAnyoneUp in 2010.[9] The site featured user-submitted pornography,[9] and was one of the first sites to adopt the model initiated by Beaver Hunt: IsAnyoneUp often included identifying information, such as the subjects’ names, employers, addresses and links to social networking profiles.[9] Activist Charlotte Laws was the first person to speak out against Moore and one of the first people to publicly support revenge porn victims. This prompted backlash from some of Moore's devotees, who stalked her and pummeled her with computer viruses and death threats.[10]

The website endrevengeporn.org, founded by Holly Jacobs, a revenge porn victim, campaigns for the criminalization of revenge porn.[11] Jacobs is also the founder of the Cyber Civil Rights Initiative (CCRI), a nonprofit organization that seeks to challenge cyber harassment. CCRI prefers the term "nonconsensual pornography"[12] and considers revenge porn to be a form of sexual abuse.[13] Danielle Citron, who was the first to argue that cyber harassment should be understood and addressed as civil rights violations, advises the organization.[14][15] Mary Anne Franks, CCRI's Vice-President and Legislative & Tech Policy Director, has been heavily involved with legislative and policy efforts to combat revenge porn.[16]

In February 2015, the social media site and online bulletin board Reddit announced a change to its privacy policy to ban the posting of sexually explicit content without the consent of those depicted. The company stated that its policy regarding "illicit pornography — pictures and video — was a burning one" after a recent all-hands company meeting. As of March 2015, the ban goes into effect.[17] In March 2015, Twitter followed suit with new rules to address the posting of unauthorized content and specifically revenge porn. Starting March 11 Twitter stated it would immediately remove "any 'link to a photograph, video, or digital image of you in a state of nudity or engaged in any act of sexual conduct' that has been posted without consent."[18] According to a Washington Post article on the changes, if it is determined that an account has broken the new rules, Twitter staff will hide the post and may block the account. The article also stated that the changes were in response to growing concerns "that it has not done enough to prevent bad behavior on its site."[19]

In June 2015, Google announced it would remove links to revenge porn on request.[20] Microsoft followed suit in July.[21] Both have placed forms on-line for victims to complete.[22][23] Together the two organizations account for nearly 90% of the internet search market in the US.[24] Commenting on these decisions, Dr. Laura Hilly and Kira Allmann of the Oxford Human Rights Hub characterize revenge porn as a kind of gendered hate speech designed to silence women and other gender, sexual, and racial minorities. Rather than promote free expression, as its defenders maintain, it stifles free expression and the internet needs protection from it.[25]

Legislation[edit]

Laws banning revenge pornography have been slow to emerge.[26] Contributing factors include a lack of understanding about the gravity of the problem, free speech concerns,[27] belief that existing law provides adequate protection,[27] a lack of care, historically, for women's issues, and "misunderstandings of First Amendment doctrine" (Citron & Franks).[26][28] The American Civil Liberties Union has drawn attention to the implications for free speech if legislation is too broad.[29][30][31]

Asia[edit]

Japan criminalized revenge porn in 2014.[32]

The Philippines criminalizes copying, reproducing, sharing or exhibiting sexually explicit images or videos over the Internet without written consent of the individual depicted.[33]

In January 2014, Israel became the first country to pass a law that classifies revenge porn as a sex crime. Sharing sexually explicit videos without the consent of the pictured individual will be punishable by up to five years in prison.[34] As of 2014, Lebanon, Saudi Arabia, and Egypt have no specific legislation against revenge porn, although general anti-pornography, indecency, defamation, or invasion of privacy laws could be applied.[35]

Australia[edit]

In December 2013, the Australian state of Victoria extended its existing sexting laws to also prohibit the sending of sexually explicit pictures of a third party, while protecting some children who may have been caught by the legislation.[36] The legislation followed an upsurge in the practice[37] and the case Giller v Procopets, which had to be argued on the equity of breach of confidence and tort grounds.[38][39][40] New South Wales is also considering its approach to the practice,[41] as is Queensland.[42]

North America[edit]

Canada[edit]

Canada criminalized revenge porn in 2014 with the passage of the Protecting Canadians from Online Crime Act.[43]

United States[edit]

Tort, privacy, copyright and criminal laws offer remedies against people who submit revenge porn.[44][45] Several US states have passed laws specifically criminalizing revenge porn. As of June 21, 2015, twenty-three states have laws expressly applicable to revenge porn, with at least seventeen more in the process of drafting legislation : Alaska, Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Maryland, New Jersey, New Mexico, Nevada, North Dakota, Oregon, Pennsylvania, Texas, Utah, Vermont, Virginia, and Wisconsin.[46][47][48] For example, New Jersey law prohibits both the capture and the distribution of sexually explicit photographs and films by any person, "knowing that he is not licensed or privileged to do so" and without the subjects' consent.[49] The law was used to prosecute Dharun Ravi, the Rutgers student who distributed webcam footage of his roommate Tyler Clementi engaging in sexual activity, after which Clementi killed himself.[50] The law has also been used to prosecute several men who allegedly distributed revenge porn of their ex-girlfriends.[51]

Mary Anne Franks drafted the model legislation that served as the basis of many of these state laws and advised legislators in the majority of the states that have passed laws against revenge porn, though she emphasizes that many of these laws are deeply flawed.[47][52] Franks is also working with the office of Congresswoman Jackie Speier (D-CA) on a federal criminal bill.[53] The proposed bill is expected to be introduced before Congress on September 9, 2015, a later introduction than originally planned to address concerns about unintended effects on legitimate speech online and accidental violators.[54][55] The problems that can arise with an overbroad law were exemplified earlier in July when Arizona's federal judge Susan Bolton ruled that Arizona's revenge porn law could not be enforced in its present form following a lawsuit filed by the American Civil Liberties Union.[31]

Representatives from the Department of Justice, California's Office of the Attorney General, the technology industry, and law enforcement joined together in 2015 to form a a Cyber Exploitation Working Group, and have announced the creation of a working hub "to combat so-called cyber exploitation — the practice of anonymously posting explicit photographs of others online, often to extort money from the victims."[56]

Criminal prosecutions[edit]

Several well-known revenge porn websites, including IsAnyoneUp and the Texxxan, have been taken down in response to actual or threatened legal action.[57] The former was investigated by the FBI after anti-revenge porn activist Charlotte Laws uncovered a hacking scheme associated with the website. Indictments were handed down in January 2014 for the site owner and his accomplices, and the trial was initially set to begin in November 2014 in Los Angeles.[58] Hunter Moore, who ran the site "isAnyoneUp" pleaded guilty to hacking and identity theft in early 2015 and faces up to seven years in prison.[59] Moore's sentencing court date is scheduled for June 24, 2015.[60]

In December 2013, California Attorney General Kamala Harris charged Kevin Bollaert, who ran the revenge porn website UGotPosted, with 31 felony counts, including extortion and identity theft.[5][61] In March 2014, because the victim was under eighteen years old in the photos, a court in Ohio awarded damages of $385,000 against Bollaert.[5] In April 2015 Bollaert was sentenced to 18 years in prison.[62] "Sitting behind a computer, committing what is essentially a cowardly and criminal act, will not shield predators from the law or jail," said Attorney General Harris following the verdict.[62]

Hunter Moore, the founder of porn website IsAnyoneUp, was indicted on fifteen felony counts in January 2014, including conspiracy to violate the Computer Fraud and Abuse Act, an anti-hacking statute;[63] according to FBI charges, Moore paid a computer hacker to extract explicit images for his now-defunct website.[5] In December 2014, a man was convicted according to the law in the state of California for posting a naked photo of his ex-girlfriend along with derogatory comments on her employer's page on Facebook; he is serving time in jail.[64]

Casey Meyering, the operator of revenge porn websiteWinByState, was arrested[65] in Oklahoma in 2014 and extradited to Napa County. Meyering's website invited users to submit nude photos of ex-girlfriends and other women, with the photos categorized by state. He would then make the women featured on his website pay $250 to have their photos taken down. There were about 400 images of California women on the website, including at least one in Napa Valley, where California Attorney General Kamala Harris filed a case against Meyering in 2014. After originally pleading not guilty, on May 8th, 2015, the 28-year-old man pleaded no contest to one count of extortion, three counts of attempted extortion, and one count of conspiracy. He was sentenced to three years in jail as of early June 2015.

Tort and privacy law[edit]

Recent lawsuits over revenge porn have alleged invasion of privacy, public disclosure of private fact and intentional infliction of emotional distress against the individuals who uploaded the images.[66] Forty states, including California and New York, have anti-cyberharassment laws that may be applicable to cases of revenge porn.[67]

In February 2014, a US$500,000 settlement was awarded to a Texas woman who brought suit against her ex-boyfriend for posting video and photos of her on the Internet. The state did not have a specific "revenge porn" law at the time of the lawsuit.[68][69][70]

Communications Decency Act §230[edit]

Recent revenge porn lawsuits name service providers and websites as defendants alongside individuals who uploaded the images.[71] The Communications Decency Act, also known as §230, shields websites and service providers from liability for content posted by users providing they are not themselves co-creators of the content.[72][73][74] If user-generated content posted to a website does not violate copyright or federal criminal laws, sites have no obligation to remove the content under §230.[75][76]

Copyright[edit]

An estimated 80% of revenge porn pictures and videos are taken by the subject themselves.[77] Those individuals can bring actions for copyright infringement against the person who uploaded their nude or semi-nude "selfies". American victims may file Digital Millennium Copyright Act takedown notices with service providers.[78] Revenge porn site MyEx.com has been a defendant in a copyright infringement case.[79]

First Amendment and anti-SLAPP[edit]

Some free speech advocates object to revenge porn laws on First Amendment grounds.[80] Legal scholar Sarah Jeong argues that new criminal laws meant to combat revenge porn are likely to be overbroad, resulting in unintended consequences.[81] United States courts are generally reluctant to uphold legislation that restricts free speech.[82]

Revenge porn uploaders and websites may also challenge lawsuits using state protections against strategic lawsuit against public participations (anti-SLAPP laws),[83] which allow defendants to counter lawsuits aimed at stifling free speech.[84]

Europe[edit]

Many European countries have broad privacy statutes that may be applicable to revenge porn.[85] France also criminalizes the willful violation of the intimate private life of another by "transmitting the picture of a person who is within a private place, without the consent of the person concerned".[86] In Germany, in May 2014 a High Court ruled that intimate photographs of partners should be deleted if the partner requests.[87]

United Kingdom[edit]

In 2012, the English singer-songwriter Tulisa Contostavlos obtained an injunction preventing the distribution of a sex-tape of her and a former lover that had been published on the internet.[88][89] The case was set to include considerable damages, but was settled out of court before it could be considered.[90][91]

In April 2014, UK charities including The National Stalking Helpline, Women's Aid, and the UK Safer Internet Centre reported increased use of revenge porn websites.[87] Women’s Aid Charity Chief Executive Polly Neate stated, "To be meaningful, any attempt to tackle revenge porn must also take account of all other kinds of psychological abuse and controlling behaviour, and revenge porn is just another form of coercive control. That control is central to domestic violence, which is why we're campaigning for all psychological abuse and coercive control to be criminalised". In July, Minister of Justice Chris Grayling announced plans to "take appropriate action" to address revenge porn in Britain.[87] A House of Lords Committee, in a report on social media and the law, subsequently called for clarification from the DPP as to when revenge porn becomes a crime.[92][90]

In February 2015 it was announced that the Criminal Justice and Courts Act 2015, which has a specific amendment dealing with such actions, had received Royal Assent. The Act is now law in England and Wales and offenders face up to two years in jail.[93] Section 33 of the Act makes it an offence to disclose private sexual photographs and films without the consent of the individual depicted and with the intent to cause distress. A person charged with this offence is not taken to have intended to cause distress if that distress was merely a natural and probable consequence of the disclosure.[94]

On April 23, 2015, a seminar was held in Westminster on the new legislation. The seminar was organised by the Oxford Human Rights Hub and co-hosted with the law firm McAllister Olivarius, the End Violence Against Women Coalition, The University of Durham, and The University of Birmingham.[95][96] The seminar called for the law to be extended to cover nuisances such as upskirting.

Chrissy Chambers, a YouTube star from the United States, is pursuing a civil suit against her British ex-boyfriend who posted sexually-explicit videos taken without her knowledge or consent to Facebook. The videos subsequent went viral on the internet. Chambers is pursuing a civil case as the Criminal Justice and Courts Act 2015 does not apply retroactively to content posted prior to its passage.[97][98]

Minors[edit]

If the video or images in question are of individuals who are minors, this can lead to legal action for child pornography[99] as has happened in non-revenge porn related cases involving sexting.[100][101]

Prenuptial agreements[edit]

Increasingly, couples are drafting "social media" prenuptial agreements,[102] some of which include provisions relating to revenge porn.[103] Clauses may state that couples agree not to share photos or posts that are likely to harm a spouse’s professional reputation.[102]

See also[edit]

References and sources[edit]

References
  1. ^ a b Citron & Franks 2014, p. 346
  2. ^ Emily Bazelon,Why Do We Tolerate Revenge Porn?", Slate (Sept. 25, 2013).
  3. ^ Eric Larson, "It's Still Easy to Get Away With Revenge Porn", Mashable, 21 October 2013.
  4. ^ Danielle K. Citron, "‘Revenge porn’ should be a crime", CNN Opinion (Aug. 30, 2013).
  5. ^ a b c d e f "STATE REVENGE PORN LAWS". CA Goldberg. 29 September 2015. 
  6. ^ a b Kelly Dennis, Art/Porn: A History of Seeing and Touching, Oxford International Publishers (2009)
  7. ^ See, e.g., Wood v. Hustler, 736 F.2d 1084 (5th Cir. 1984).
  8. ^ a b Alexa Tsoulis-Reay, "A Brief History of Revenge Porn", New York Magazine (July 21, 2013).
  9. ^ a b c On The Media, "Revenge Porn’s Latest Frontier", WNYC (Dec. 2, 2011).
  10. ^ Carole Cadwalladr. "Charlotte Laws' fight with Hunter Moore, the internet's revenge porn king". the Guardian. 
  11. ^ [1].
  12. ^ Staff. "About". CCRI. Retrieved 27 March 2014. 
  13. ^ "Frequently Asked Questions". .endrevengeporn.org. Cyber Civil Rights Initiative. Revenge porn, n. - A form of sexual abuse that involves the distribution of nude/sexually explicit photos and/or videos of an individual without their consent. Revenge porn, sometimes called cyber-rape or nonconsensual pornography, is usually posted by a scorned ex-lover or friend, in order to seek revenge after a relationship has gone sour. 
  14. ^ "CCRI: About us". cybercivilrights.org. Cyber Civil Rights Initiative. 
  15. ^ Citron 2009
  16. ^ "Meet the Krav Maga-fighting law professor behind U.S. revenge porn laws". The Daily Dot. 
  17. ^ Pardon, Rhett (February 24, 2015). "Reddit to Ban Sexually Explicit Content Posted Without Consent". XBIZ.com. Retrieved 25 February 2015. 
  18. ^ Hymes, Tom. "Twitter Targets Revenge Porn with New Abusive Behavior Policies New tougher prohibitions start today.". AVN.com. Adult Video News. Retrieved 12 March 2015. 
  19. ^ Tsukayama, Hayley (March 11, 2015). "Twitter updates its rules to specifically ban ‘revenge porn’". Washington Post. Retrieved 12 March 2015. 
  20. ^ Golbeck, Jennifer. "Google to Remove Revenge Porn from Search Results". slate.com. Slate. 
  21. ^ Beauchere, Jacqueline. "‘Revenge porn:’ Putting victims back in control". blogs.microsoft.com/. Microsoft. 
  22. ^ "Google's Revenge Porn Form". cagoldberglaw.com. C. A. Goldberg. 
  23. ^ "Report Content to Microsoft". support.microsoft.com. Microsoft. 
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  26. ^ a b Citron & Franks 2014, p. 347
  27. ^ a b Greenfield, Rebecca (27 Aug 2013). "Why Isn't Revenge Porn Illegal Everywhere?". The Wire (The Atlantic). Retrieved 27 June 2015. 
  28. ^ Citron, Danielle. "Debunking the First Amendment Myths Surrounding Revenge Porn Laws". forbes.com (Forbes). 
  29. ^ "‘Revenge Porn’ Bill Needs Changes". acluct.org. American Civil Liberties Union. 
  30. ^ Franks, Mary Anne (1 April 2015). "The ACLU's Frat House Take on 'Revenge Porn'". huffingtonpost.com (Huffington Post). 
  31. ^ a b Mullin, Joe. "Arizona makes deal with ACLU, won’t enforce bad law on “revenge porn”". arstechnica.com. Ars Technica. 
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  34. ^ Yaakov, Yifa (6 January 2014). "Israeli Law Makes Revenge Porn a Sex Crime". The Times of Israel. 
  35. ^ Ajbaili, Mustapha (10 January 2014). "Banning ‘Revenge Porn:’ Will Arabs follow Israel's lead?". Al Arabiya News. Retrieved 25 June 2015. 
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  39. ^ claytonutz, 10 December 2008: Victorian case a next step in protection of private information
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  42. ^ The Age, 16 September 2015: Pressure builds for revenge porn laws in Queensland
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  45. ^ Doug Barry, "A New Bill in Florida Would Make Non-Consensual ‘Revenge Porn’ a Felony", Jezebel, 7 April 2013.
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  48. ^ John Floyd (30 September 2015). "Revenge Porn, Open Carry Laws Come to Texas". johntfloyd.com. Retrieved 26 October 2015. 
  49. ^ New Jersey Invasion of Privacy, "N.J.S.A. 2C:14-9".
  50. ^ Megan DiMarco and Alexi Friedman, "Live Blog: Dharun Ravi Sentenced to 30 Days in Jail", The Star-Ledger (May 12, 2012).
  51. ^ Marueen O’Connor,"The Crusading Sisterhood of Revenge-Porn Victims", New York Magazine (Aug. 29, 2013).
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  55. ^ Nelson, Steven. "Congress Set to Examine Revenge Porn". usnews.com. U.S. News & World Report. 
  56. ^ Associated Press (2015-10-15). "California teams with tech firms to fight cyber exploitation". Los Angeles Times. Retrieved 2015-10-20. 
  57. ^ Erica Goode, "Victims Push Laws to End Online Revenge Posts", New York Times 23 September 2013.
  58. ^ Roy, Jessica. "Revenge-Porn King Hunter Moore Indicted on Federal Charges". Time. Retrieved 19 April 2014. 
  59. ^ "Revenge Porn Kingpin Hunter Moore Pleads Guilty, Faces Jail". NBC News. 
  60. ^ "Is This the End of Revenge Porn?". The Daily Beast. 
  61. ^ "Press Release: Attorney General Kamala D. Harris Announces Arrest of Revenge Porn Website Operator", California Office of the Attorney General.
  62. ^ a b Perry, Tony (3 April 2015). "'Revenge porn' website operator sentenced to 18 years". Los Angeles Times. Retrieved 2015-04-04. 
  63. ^ Indictment, United States v. Hunter Moore.
  64. ^ "'Revenge porn' Facebook post leads to jail sentence". BBC News. 3 December 2014. Retrieved 2015-04-04. 
  65. ^ Sean Scully. "'Revenge porn' website operator sentenced to 3 years". Napa Valley Register. 
  66. ^ Complaint in Jacobs v. Seay, 13-1362 6CA0 (Fl. Apr. 18, 2013)
  67. ^ "State Cyberstalking and Cyberharassment Laws". National Conference of State Legislatures. 16 November 2012. 
  68. ^ Staff. "Houston woman wins $500,000 in 'revenge porn' lawsuit". abclocal.go.com. Retrieved 3 March 2014. 
  69. ^ Staff. "Texas Jury Awards Revenge-Porned Woman Half a Mil". Adult Video News. Retrieved 3 March 2014. 
  70. ^ Adi Robertson, "Texas Woman Wins Half a Million Dollars in Revenge Porn Lawsuit", The Verge (Mar. 1, 2014)
  71. ^ Toups v. Godaddy.com, No. D130018-C (Tex. June 18, 2013).
  72. ^ 47 U.S.C. §230 Protection for Private Blocking and Screening of Offensive Material.
  73. ^ Lichter, Susanna (28 May 2013). "Unwanted exposure: Civil and criminal liability for revenge porn hosts and posters". Harvard Journal of Law and Technology. 
  74. ^ Franks, Mary Anne (18 December 2013). "The Lawless Internet? Myths and Misconceptions About CDA Section 230". huffingtonpost.com (Huffington Post). 
  75. ^ Jerry Brito, "Are Laws Against Revenge Porn A Good Idea?" (Oct. 21, 2013).
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  77. ^ Heather Kelly, "New California 'Revenge Porn' Law May Miss Some Victims", CNN (Oct. 3, 2013).
  78. ^ 17 U.S.C. §102-Subject Matter of Copyright: In General.
  79. ^ "Hollie Toups vs Google, Inc., Yahoo!, Inc. and www.myex.com". United States District Court, Eastern District of Texas, Beaumont Division. March 6, 2014. Retrieved July 19, 2014. 
  80. ^ Erin Fuchs, "Here's What the Constitution Says About Posting Naked Pictures Of Your Ex To The Internet", Business Insider (Oct. 1, 2013).
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  82. ^ See United States v. Alvarez, 132 S.Ct. 2537, 2544 (US 2012) ("[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content").
  83. ^ Mullin, Joe (22 January 2013). "New lawsuit against 'revenge porn' site also targets GoDaddy". Ars Technica. 
  84. ^ Twenty-five states currently have anti-SLAPP legislation. "What is a SLAPP suit?", Chilling Effects Clearinghouse (2013).
  85. ^ Rotenberg & Jacobs 2013
  86. ^ "French Penal Code Article 226-1" (PDF). 19 November 2013. 
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  93. ^ "'Revenge porn' illegal under new law in England and Wales". BBC News. 12 February 2015. 
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Sources

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