Four years after a Californian woman sued her ex-boyfriend for posting sexually explicit photographs and videos of her online, she was awarded USD $6.4 million in one the largest judgments of its kind. According to the New York Times, although the victim was successful, this case highlights the complexities of the law in this area which (like many other areas of law) lags behind technology.

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. 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. An overview of the remedies available to American victims in each of the 50 states is available here.
  • South Africa has pending cyber legislation which includes criminalising the distribution of intimate images without consent.

There is an alternative, and perhaps rather unusual, remedy in copyright law which may assist victims in jurisdictions with undeveloped laws in this area. 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 USD $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. 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.

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.

See our recent posts on copyright protection in a social media context generally and how social media platforms handle harmful content.