In the past decade, non-consensual sharing of intimate images, or “revenge porn”, has been an unfortunate global phenomenon. In such cases, harmful intimate images – often of women – are put online without the individual’s knowledge, which is why they are considered non-consensual. This circumstance presents a number of privacy-related issues and even constitutes privacy harm.
Global context
In 2018, the Council of Europe Cybercrime Convention Committee’s Working Group on cyberbullying and other forms of online violence, especially against women and children, carried out a mapping study on cyberviolence, defining “cyberviolence” as “the use of computer systems to cause, facilitate, or threaten violence against individuals that results in, or is likely to result in, physical, sexual, psychological or economic harm or suffering and may include the exploitation of the individual’s circumstances, characteristics or vulnerabilities”. Acts of cyberviolence may take a variety of forms ranging from ICT-related violations of privacy, such as stalking, identity theft and impersonation, cyber-harassment, or even cybercrime.
The European Court of Human Rights (ECtHR) 2021 judgement in the matter of Volodina v. Russia found a violation of Article 8 of the European Convention on Human Rights (which concerns respect for private and family life) after public authorities had failed to protect a female victim of domestic violence from repeated acts of cyberviolence and to bring the perpetrator to justice. In the decision, referring to the 2015 report “Cyberviolence against Women and Girls: A World-wide Wake-up Call”, the ECtHR observes that “violence online and offline, or ‘physical’ violence against women and girls (VAWG) and ‘cyber’ VAWG, feed into each other”. The court found that “abuse may be confined to networked technologies or may be supplemented with offline harassment including vandalism, phone calls and physical assault”. In addition, some terminology is particular to cyber VAWG. For example, the sharing of so-called “revenge porn” consists of one individual posting intimate photographs of another individual online with the aim of publicly shaming and humiliating that person, and even inflicting real damage on the target’s life, such as getting them fired from their job.
A 2018 report, by the UN Human Rights Council’s Special Rapporteur on violence against women, its causes and consequences, on online violence against women and girls from a human rights perspective, notes that online violence against women may be manifested in different forms and through different means, such as non-consensual accessing, using, manipulating, disseminating, or sharing of private data, photographs, or videos, including sexualized images. New among other forms of violence, so-called “revenge porn” consists in the non-consensual online dissemination of intimate images, obtained with or without consent, with the purpose of shaming, stigmatising, or harming the victim.
The significance of the 2021 ECtHR decision is very much relevant locally since the European Convention on Human Rights applies to Bermuda as a British Overseas Territory. Moreover, the aforementioned Council of Europe study on cyberviolence observed that “the phenomenon [of non-consensual sharing of intimate images] predominantly involves a partner in an intimate relationship disseminating the material in order to humiliate or intimidate the victim”. It has been recognised as a crime in several jurisdictions, including in Bermuda.
Non-consensual sharing of intimate images in Bermuda
In the ministerial statement of 1 March 2023, the Hon. Kathy Lynn Simmons, JP, MP Attorney-General and Minister of Legal Affairs and Constitutional Reform informed the House of Assembly that, according to reports by the Director of Public Prosecutions (DPP), there had been “an uptake in complaints [regarding revenge porn] among our young people since the onset of the COVID-19 pandemic, which are just recently coming to light”.
The reported increase has occurred despite the fact that so-called “revenge porn” is illegal in Bermuda. The Criminal Code Amendment (Non-Consensual Sharing of Intimate Images) Act 2021 received Royal Assent on the 11 June 2021, and the “non-consensual sharing of intimate images” (sections 199A to 199E) were inserted into the Criminal Code from 15 June 2021.
The Criminal Code Amendment Act 2021 is not the only piece of legislation that is violated by the non-consensual sharing of intimate images. The Personal Information Protection Act (PIPA) 2016 explicitly prohibits the sharing of personal information, including sensitive personal information, without the affected individual’s consent or under an acceptable condition. Too often, the purpose of sharing such images is solely to harm the individual concerned.
In this connection, the Office of the Privacy Commissioner for Bermuda (PrivCom) would like to highlight the following considerations:
In addition to the actions associated with non-consensual sharing of intimate images being a criminal matter, they are also “uses” of personal information that would likely violate the purposes of use (Section 10) – and almost certainly would violate PIPA’s fairness principle (Section 8), or the idea that the information is being used for the best interest of the individual.
This misuse of personal information is likely to cause harm to individuals and would therefore form an offense under section 47(1)(a) and/or (b), meaning that violators could also be subject to financial liabilities under PIPA of up to $250,000 in addition to imprisonment for 2 years, per section 47(3).
Once PIPA is fully enacted, individuals affected by non-consensual intimate image sharing are able to bring a private legal action against the perpetrator. Under PIPA’s section 21, individuals who suffer emotional distress are entitled to compensation determined by the court.
Commissioner White has said: “The need for these protections in our modern society is clear. The criminal offenses that Parliament created to address the issue are an important tool to protect individuals. For the same reason, bringing PIPA into effect is an important step to give individuals a greater ability to control their digital lives – and, if needed, to hold their abusers accountable."