Scott R. Stroud & Jonathan Henson (University of Texas at Austin)*
In light of the recent Texas 12th Court of Appeals ruling striking down Texas Penal Code 21.16(b), otherwise known as the 2015 Texas Revenge Porn Law, it is useful to reconsider the complexity inherent in this awful online phenomenon. Is online revenge porn or nonconsensual porn as simple and straightforward as these laws and policy-makers lead one to believe? The court specifically criticized the law as “an invalid content-based restriction and overbroad in the sense that it violates rights of too many third parties by restricting more speech than the Constitution permits” (commentary here and here). How might third parties be implicated in such broad legal characterizations of revenge or nonconsensual porn? Being careful, honest, and precise about the various parameters of this online behavior are vital to constructively addressing it through legal, policy, and educational means.
All of the passionate rhetoric and calls for legislative action heard over the past few years assume that we know exactly what we mean when we issue calls against “revenge porn” or “nonconsensual pornography.” We want to argue that there is actually a plethora of behaviors potentially existing in the category of revenge porn, and not all of them entail the same harms, culpability, or, as we will discuss, the same issues of consent and privacy.
First, let us see how some leading advocates of criminalizing revenge porn—also discussed as nonconsensual pornography—define the term. Citron & Franks (2014, 1) stipulate that: “Nonconsensual pornography involves the distribution of sexually graphic images of individuals without their consent. This includes images originally obtained without consent (e.g., hidden recordings or recordings of sexual assaults) as well as images originally obtained with consent, usually within the context of a private or confidential relationship (e.g., images consensually given to an intimate partner who later distributes them without consent, popularly referred to as “revenge porn”).” This definition parses into two categories, images obtained through secret recordings or voyeurism and those obtained with consent (but not consent to publish outside of the relationship, presumably). There is no mention here of any diversity among posting behaviors online or on social media; it is simply assumed that the image content carries a consent-status, and that harm comes from distributing images with a negative consent status. In another attempt at a definition, Franks (2015, August 17) states that “Nonconsensual pornography refers to sexually explicit images disclosed without consent and for no legitimate purpose. The term encompasses material obtained by hidden cameras, consensually exchanged within a confidential relationship, stolen photos, and recordings of sexual assaults.” Here the same idea is proffered—imagistic content that is simply “disclosed” that comes from knowing or unknowing subjects depicted within the content. A new aspect is added, however, that defines nonconsensual pornography as images that uphold two criteria—they lack consent (presumably to distribute to others) and they serve “no legitimate purpose.” Of course, the latter clause is tough to operationalize in practice, as individuals will often think of speech that they disagree with as serving no legitimate purpose.
Both of these definitions of revenge porn might serve us well if we are fixated on the horrible case of one former relational partner attempting to harm another partner through the disclosure of sexual images online. They do not serve us well, however, when we start to ask specific questions about the different ways that this content can be posted, or how it can remain identifiable or linked to that real-life subject. In other words, these delineations of the category of revenge porn do not do justice to the various ways that the simple-sounding act of “disclosure” can happen online, and they do not seriously interrogate what it means for an image to have negative consequences through its connection with that identifiable person. These are, however, vital points, since the whole crux of controlling a phenomenon like revenge porn rests on having an understanding of what exactly one is trying to control with laws and moral approbation. Building on the actual and potential differences in revenge porn noted in previous studies (e.g., Stroud, 2014), let us divide up the category of revenge porn (or nonconsensual porn) into four variable dimensions: (1) the source of the content posted, (2) the consent-status of the material posted, (3) the intent of the agent doing the posting, and (4) identifying features resident in the imagistic content. These can be found in Table 1. We will then describe each one of these aspects in further detail to arrive at a clear specification of the range of potential revenge or nonconsensual pornography practices in the online world.
Table 1: Types of Revenge/Nonconsensual Porn Posting Behaviors
|Content Source||Consent Status||Poster Intent||Identifying Content|
|Self||Granted||Praise subject||Known identifiers|
|Other||Not granted||Harm subject||Unknown identifiers|
|Online||Uncertain||Other intentions||No possible identifiers|
The first dimension of revenge porn posting behavior involves where it came from prior to a given act of posting. This can be labeled as the source dimension. Did it come from the poster’s actions, such as the use of their camera? Or was it sent to them from someone else—a relational partner or other conversant—who created that content? Thus, the source dimension can be divided into poster-created and other-created content. Some of this other created content could be from a relational partner, or it could be from online conversational partners that send one nude images, as appeared to be the case in some of the major revenge porn sites (Peterson, 2013, February 18). One could also stumble across such content online, with no attributable source evident, of course. Call this material simply online content, since its story of authorship is unclear or hidden. This is what one might find, if one googled a random term in an image search. Who exactly knows where the resulting images came from?
The second dimension of revenge porn postings involve what we will call the consent status of the images. We will discuss consent more in the following sections, as this is a vital point about the ethics of posting such material. For now, however, it will help any analysis of the issue to be clear about the range of consent-statuses that such material can possess. There is a tendency in how partisans talk about revenge porn images as coming with consent or without consent to be shared outside of the original instance of sharing. This is misleading in its simplification of the issue. First of all, the image is simply the image. One cannot look at an image and see the consent granted to its use. Thus, consent-status is something behind and beyond the specific image, and it lay in the people involved in the transaction. An image can therefore be exchanged with consent granted for further distribution by the giving partner, or it can be exchanged without consent being granted for further distribution. Furthermore, the consent status of a given image could be uncertain. This is likely to be the case when an image is found online, or when the parties do not openly talk about the limits of future distribution. We will return to these issues in the following sections.
The third dimension that varies in revenge porn posting behaviors is the intention of the posting agent. Why do they post this material? In many cases, it is to harm or shame a former relational partner (Stroud, 2014). Another possibility is that someone posts material to praise the subject, either in their actions, character, or more likely, physical appearance. This appears to be a common practice, at least early on, in the history of revenge porn sites; Hunter Moore, if we are to trust his early media pronouncements, indicated that around 50% of his site’s submissions were from individuals seeking their own quick internet fame (Hill, 2012, April 5). Some find this to be an incredible claim, and with good reason considering the recent evolution of how revenge porn is often used in courses of harassment and stalking. Regardless of the accuracy or veracity of Moore’s claims, we do see the conceptual room for the intention to praise the posted subject—especially when we move into content simply found on the internet (online sources) and shared. There can be other intentions, of course, some connected with posting for entertainment value or posting connected to financial gains (as seemed to be the motive in many revenge porn sites).
The most pernicious effects of revenge porn, clearly acknowledged in cases such as those that involve a person seeking to harm an ex-relational partner, come not simply from the image existing or being seen by others. The worst harms—threats, stalking, targeted harassment, family embarrassment, and financial or job loss—all turn on damaging content being connected to an identifiable individual. Thus, we can discern another dimension of revenge porn posting: the presence and type of identifying content resident in the image or along with the image. There are millions of sexual or nude images online at any given moment, but when one is identified as connected to that image, and when an audience exists for that image, harm can occur. Usually this is through contacting real-life people connected to that individual and sharing the embarrassing image. Many posters want this outcome, so they post some amount of identifying material along with the image. This can include a range of information about the subject: first name, first name with last initial, full name, address, town, email address, employer’s address or contact information, family member information, and even their social security number. It is important to stress that various sites and webmasters post various amounts of this information; some are rather minimal in what identifying information they post (Stroud, 2014).
These bits of informational can be called known identifiers, since they are attached to the image and connect the depicted person to an identifiable individual who putatively does not want the world to see them nude. As previous research has made clear, sometimes the crowd-sourced aspects of the internet communities surrounding the posting of revenge porn content supply the identifying information. In the usual story, the spurned relational partner posts the content and identifies the subject; in the wild west of the internet, however, often content is posted and the amorphous, unknown crowd then comments upon it, supplying more and more detail about the subject (Stroud, 2014). This is often due to others recognizing the individual in the picture, either through their face, objects in the background (e.g., a diploma on the wall, name tag, etc.), or other identifying marks (distinctive tattoos, a recognizable dorm room, etc.). Often these marks become useful through the crowd-sourced, mass agency of online users combining their powers of identification and inference.
Thus, someone could post an image with no known identifying content, but still leave room for future identification through others noticing heretofore unknown identifiers resident in the image. As facial “tagging” and recognition software advances, one could argue that many pictures could contain such unrealized clues to the subject’s real-life identify. Conceivably, one could post a photo with no possible identifiers in it; perhaps this would be the case in a close up shot of a body part with no identifying marks or background objects visible. Such non-identifying shots could be used for the purposes of revenge porn by posting them next to a non-nude image of some identifiable person, thereby making the visual argument that that person was the same person that was nude in the second, non-identifiable picture featuring nudity. This contingency, like many of the permutations mentioned previous are all ignored in most passionate discussion of revenge porn in favor of the standard “relationship gone bad” story discussed in the introduction. Yet one thing is clear: revenge porn is not one behavior, but instead a cluster of activities that vary in certain dimensions. What impact will the realization of its complexity have on our discussion of its harms?
*Excerpt adapted from Scott R. Stroud & Jonathan Henson, “Social Media, Online Sharing, and the Ethical Complexity of Consent in Revenge Porn,” The Dark Side of Social Media: A Consumer Psychology Perspective, Angeline Close Scheinbaum (ed.), Routledge, 2018.
Dr. Scott R. Stroud is an associate professor in the Department of Communication Studies at the University of Texas at Austin and director of the Media Ethics Initiative. Jonathan Henson is a doctoral student in the Department of Communication Studies at the University of Texas at Austin.
Citron, D. K., & Franks, M. A. (2014). Criminalizing Revenge Porn. Wake Forest Law Review, 345(49), 1-38. Online.
Franks, M. A. (2015, August 17). Drafting an effective “revenge porn” law: A guide for legislators. Online.
Hill, K. (2012, April 5). Why we find Hunter Moore and his “identity porn” site, IsAnyoneUp, so fascinating. Forbes. Online.
Peterson, H. (2013, February 18) Revenge porn website operator accused of “catfishing” to trick woman into sending him nude photos so he can upload to site. Daily Mail. Online.
Stroud, S. R. (2014). The Dark Side of the Online Self: A Pragmatist Critique of the Growing Plague of Revenge Porn, Journal of Mass Media Ethics, 29 (3), 168-183.