Four years after a Californian woman sued her ex-boyfriend for posting sexually explicit photographs and videos of her online, she has been awarded $6.4 million (R80 million) in one the largest judgments of its kind.

According to the the New York Times, shortly after a California woman and her boyfriend ended their relationship in 2013, he began to post sexual photographs and videos of her on pornography websites and to impersonate her in online dating forums, according to court documents.

However, despite the victim’s eventual success, the case highlights the complexities of the law in this area which (like many other areas of law) lags behind technology, according to Kerri Crawford, senior associate at Norton Rose Fulbright South Africa.

“Causes of action that spring to mind in these cases rely on laws aimed at combatting invasion of privacy, harassment, online abuse and in some instances, specific prohibitions against sharing intimate images without consent,” Crawford said.

She added that these laws are relatively new and vary widely between jurisdictions. For example:

• In 2014, Israel became one of the first countries to introduce specific legislation which criminalises the distribution of sexually explicit media without consent. The United Kingdom, Japan and New Zealand have followed suit.
• Victims in countries which distinguish between federal and state law may have different remedies depending on where they are located. In Australia, all states except Queensland, Tasmania and the Northern Territory have specific legislation.

Crawford also highlighted that South Africa has pending cyber legislation which includes criminalising the distribution of intimate images without consent.

The proposed Bill includes possible jail time of up to 3 years and/or a fine if a message is found to be intimate in nature (aka nudity), and is distributed without the consent of the person involved.

Copyright 

While these new laws are yet to come into effect there is an alternative, and perhaps rather unusual, remedy in copyright law which may assist victims in jurisdictions with undeveloped laws in this area, said Crawford.

The victim in the California case held the copyright in the videos and photographs because she took them herself.

She registered the copyright (which is a requirement to seek relief under US federal copyright law) and ultimately received $450,000 in copyright infringement damages as part of the award.

“A survey referenced in this 2015 New York University article indicates that a large percentage of harmful images are “selfies”, shared willingly by victims with no suspicion of them ever being used against them,” said Crawford.

“The selfie-taker owns the copyright in the images. Many jurisdictions provide copyright owners with remedies for copyright infringement, including damages like those awarded in the California case.

“South Africa’s Copyright Act specifically provides for interdictory (injunctive) relief, which on an urgent basis could achieve what victims are often most concerned about – having the offending images removed,” she said.

However, Crawford cautioned that Copyright law is by no means a sufficient legislative solution and does nothing to assist victims who did not take their own images.

“But it is an option to keep in mind, particularly for victims with limited other recourse. It also serves as a reminder to companies to register their copyrights in applicable images, to provide an additional avenue against someone who misappropriates those images,” she said.