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A broken law: Rise of for-profit porn sites leaving 'revenge porn' victims stuck

"People need to be clear this is a sex crime. This is sexual violence."

Source: 1 NEWS

According to Netsafe, non-consensual pornography – commonly known as "revenge porn" – is a rising issue, and there are concerns New Zealand's laws don't do enough to protect the victims.

WHAT IS REVENGE PORN?

"Revenge porn" is a catch-all term used for intimate visual content uploaded without the consent of the person in the images.

It's used to describe cases where someone has sent another pornography or nude images, which are later distributed by the recipient, and also where the victim hasn't consented to explicit photographs or videos being created at all.

It earned its name from the common motivation for sharing the explicit images: Revenge.

According to Netsafe, they've had 12 per cent more reports of image-based sexual abuse in the last year, compared to the period prior.

Nearly two-thirds of the reports are from women.

Source: 1 NEWS

Under the Harmful Digital Communications Act, revenge porn – non-consensual pornography – is illegal when the intent is to cause the other person harm.

But what happens if it's claimed it was uploaded it for another purpose, such as to monetised platforms, in an attempt to make a profit?

A BROKEN LAW

At the moment, those cases wouldn't be able to be charged under the HDCA due to a legal loophole, says Paulette Benton-Greig.

A law lecturer at University of Waikato, Benton-Greig is an expert in cyber crime. Her research includes the justice response to sexual offending and law reform.

"I think the inability to charge people for distributing intimate visual recordings without consent for any reason other than spite is a really clear gap and we need to fill it," she tells 1 NEWS.

"[The HDCA] does cover revenge porn in the typical sense we think of, where someone uploads an image of someone in order to get back at them, but actually there's a much wider range of reasons that people upload images and currently they fall outside of the scope of that offence."

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Paulette Benton-Greig speaks to 1 NEWS about issues facing victims of non-consensual pornography. Source: 1 NEWS

Since the HDCA entered law in 2015, Benton-Greig says we're seeing a "much wider range of misuses of digital images".

"Certainly the increase in the number of pornography websites that will pay people to upload images has dramatically increased, and there's a lot of incentive for people to do that."

Labour MP Louisa Wall is spearheading a proposed amendment to the HDCA to change that. It passed its first reading in Parliament earlier this year with support from both sides of the house.

It would mean any non-consensual sharing of intimate images would be criminalised, not requiring intent to harm.

"I think people need to be clear this is a sex crime. This is sexual violence," Wall tells 1 NEWS.

It's proven challenging to prosecute some cases of revenge porn under the HDCA.

"The police have said, 'Well, they've said they did it as a joke. Well, they didn't mean to harm,'" Wall says.

"Now because of the thresholds historically, you've had to prove that the person did it to harm you deliberately and the actual harm that was caused, which is again another hurdle that the victims have had to go through."

The original intention of the HDCA would've been the prevent this type of abuse, Wall says, "but we set the thresholds too high".

"At this point in time, we are resetting those parameters and actually saying, if you don't have someone's consent and you post it online, it has detrimental consequences for that person - ongoing mental distress, obviously it's an invasion of their privacy."

Her proposed amendment is currently at the select committee stage; Benton-Greig is among the people who have submitted feedback and comments.

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Louisa Wall speaks to 1 NEWS about her amendment to the HDCA, currently going through Parliament. Source: 1 NEWS

The select committee report is due out in September, with proposed changes to the amendment based on the feedback it's received and reviewed.

Aside from the HDCA, NZ Police's Acting Detective Senior Sergeant Aisling Davies, officer in charge of the cyber crime unit, says there are other laws where charges can be laid if people share others' intimate visual content without consent.

"Under the Crimes Act 1961 it is an offence to make or distribute intimate visual recordings taken without the consent of the victim," she says.

"If the victim is under 18 years old, images could be classified as objectionable under the Films, Videos and Publications Act 1993."

Anyone who has concerns their intimate images have been shared without their consent or knowledge is encouraged to contact police on the non-emergency number 105.

"[NZ] Police also works in partnership with Netsafe to ensure victims are provided with the necessary information and advice," Davies adds.

CONCERNS OF VICTIM BLAMING

But where does the responsibility lie for the content being shared?

This week, Netsafe launched a new campaign encouraging people to be careful of who they sent intimate content to.

Its research shows four in 10 teens have sent another person a nude image of themselves.

As part of its campaign, it's encouraging open conversations with young people to make sure they're aware of the risks and how to get help if they need.

"I think there's a lot of messaging in society that that victims shouldn't have allowed people to record them in the first place, and so really it's their own fault," Benton-Greig says.

Source: 1 NEWS

"As a society, we really need to change that attitude and reassure victims that it's the non-consensual distribution of an image that is the problem here, and that we need to respond to rather than the victim's decision about whether they had a photo taken."

Speaking to 1 NEWS, Netsafe chief executive Martin Cocker echoes that sentiment.

"There's always the reality that if the images don't exist, they'll never be used to harm you," he says.

"But I don't think people should feel that they are in any way to blame with somebody else's use."

He says Netsafe has services to help people get content removed and take the matter to court.

"I'm not pretending to people that this is happening to today, that this is the perfect process," Cocker admits. 

"But there is a process in place. For many people, it will give them at least some degree of resolution.

"And although people are talking about how difficult it is to prosecute, the police are still successfully prosecuting many cases, so it does happen."

PORN GIANT RESPONDS

Canadian-owned MindGeek operates some of the world's biggest porn sites, including internet giant Pornhub.

Data from website analytics company SimilarWeb reports Pornhub is among the world's 20 most popular websites, visited more than 2.1 billion times, and the most popular porn website in New Zealand.

While it's often viewed in New Zealand, it's not bound by local laws.

That makes it very difficult to police, Benton-Greig says.

"Some [porn sites] are making changes in this direction, but ultimately they're difficult for us to enforce because they're offshore," she says.

"Whilst it is a place where responsibility lies, it's not an easy place to get change.

"It's actually more important, I think, for us to focus on what people do in the country and we can police those."

Source: 1 NEWS

Earlier this year, MindGeek announced changes intended to better ensure the safety of those in videos being uploaded.

It includes removing the ability to download videos from Pornhub or its other websites, "with the exception of paid downloads from verified users in the Model Program who have provided express consent to having their content downloaded", it said in a statement supplied to 1 NEWS.

It also requires users to be verified before uploading content, needing to provide valid ID and confirm their identity.

However, the company hasn't yet addressed concerns about proactively ensuring all people featured in a video have given their consent.

Such a measure would reduce the opportunity for non-consensual pornography to be shared on its platforms.

Wall says there's more that porn websites can do to prevent harm.

"I have huge concerns for people who don't even know what site they've been on," she says.

"The imperative around my bill is to say that that's your information, your intellectual property. If you do not give consent for that to be shared, it can't be."

THE FUTURE OF 'REVENGE PORN'

It's a common message: Once it's on the internet, it's there forever.

But Benton-Greig says that's not always the case, wanting to instead send a message of hope for victims.

"People can recover and forget and it will just disappear into the ether of the internet at some point," she says.

“People can recover and forget and it will just disappear into the ether of the Internet at some point.” - Paulette Benton-Greig Source: 1 NEWS

"There are millions of videos and I think it's a really important message to victims to not be constantly saying to them all this will haunt you forever, because that's really damning and hard, and I don't want to give survivors that message."

Meanwhile Wall is hopeful her proposed change to the HDCA will make an impact.

"We are trying to give the justice system the tools, both the police and the judges, to say to people that what you're doing is a sex crime and we will not tolerate it as a society."

News tip or more information? Email Breanna Barraclough or