Over the last few weeks our social media feeds were invaded with news of American television personalities – Blac Chyna and Rob Kardashian. After their tumultuous relationship ended again, Rob took to his social media and posted nude photographs of Blac Chyna, which she shared with him during their relationship.

Media coverage of the couple’s latest “spat” also included the legal implications of Rob’s X-rated posts. One headline read, “Rob could be charged with Revenge Porn”. These raised the questions, “What exactly is revenge porn?” and “Do we have laws to protect us from such a thing in Barbados?”

What is Revenge Pornography?

The phrase "revenge pornography" informally called "revenge porn", if broken down is self-explanatory in its name. USA University Professors Danielle Keats Citron and Mary Anne Franks defined revenge porn as the uploading of sexually explicit material to humiliate and intimidate the subject, who has broken off the relationship.

The term revenge porn is not to be confused with non-consensual pornography distributed by persons with a motive other than revenge such as hackers who may do it for profit.
Some may say “This has been going on for years and technology has only made it worst!” and “there isn’t much you can do about it other than hold your heads in shame while waiting for the scandal to ‘blow over’.” This called to question what laws if any protect us from revenge porn and where has them?

Could Rob be Prosecuted?

Revenge Porn Laws in the USA

More than half of the States in the United States of America have codified revenge porn making it a misdemeanour offence (minor offence). If Rob is charged with revenge porn, he faces a punishment of six (6) months in jail and a fine of $1,000.00.

The laws on revenge porn and the punishments for the offence vary from state to state but essentially to prove this crime, the criminal prosecutor must show that the defendant, your former partner:

  1. had in his/her possession pictures or videos they took of your intimate body parts or of you performing sexual acts OR that you sent or gave to them, with the mutual understanding that such images will be kept confidential;

  2. distributes such images or videos, where you, the victim is identifiable;

  3. has the intent to cause serious emotional distress or damage to the victim; and

  4. you in fact suffered such distress or damage.

With technology being the focal point of our daily lives and instances of revenge porn occurring too often, other countries such as United Kingdom, Australia, Germany and Israel have also codified the offence of revenge porn.

A Little Closer to Home

Revenge Porn in the Caribbean

Therese Ho v. Lendl Simmons (2015)

Back in 2015, West Indies Cricketer Lendl Simmons was ordered to pay $150,000.00 in compensation for leaking sexually explicit photographs of Therese Ho, with whom he had an extra-marital affair.

In delivering his judgment, Justice Frank Seepersad, Judge of the Supreme Court of Justice in Trinidad and Tobago, relied on a number of cases for the common law breach of confidence and confidentiality. Justice Seepersad pronounced in his judgment that even though there is an absence of precise local law in Trinidad and Tobago on an invasion of privacy such as in the case of Ho v. Simmons, he had no doubt that Simmons’s conduct was a breach of the common law duty of confidence and confidentiality. In quoting from the precedents on the issue, he agreed that "Intimate photographs and videos taken in private and shared between two lovers would ordinarily bear a confidential character and be implicitly provided on condition that they not be shown to any third party."

Computer Misuse Act CAP. 124B of the Laws of Barbados

In 2005, Barbados sought to expand their list of criminal offences on account of the advances in technology with the passing of the Computer Misuse Act CAP. 124B of the Laws of Barbados(“CMA”). Section 14 of the CMA states that,

      Where a person uses a computer to send a message, letter, electronic communication or article of any description that,

      (a) is indecent or obscene;

      (b) is or constitutes a threat; or

      (c) is menacing in character

      and he intends to cause or is reckless as to whether he causes annoyance, inconvenience, distress or anxiety to the recipient or to any other person to whom he intends it or its contents to be communicated, he is guilty of an offence and is liable on summary conviction to a fine of $10,000.00 or to imprisonment for a term of 12 months or to both.

Based on the definition of revenge porn, Section 14 of the CMA may be interpreted to cover revenge porn as the content of the act is indecent and obscene and it is likely your former partner intends to cause or is reckless as to whether he or she causes you distress or anxiety. Whilst the above section encapsulates most of the components of the USA law on revenge porn, it still does not make revenge porn a specific offence in Barbados. Moreover, it may raise questions about the effectiveness of the Section since the CMA does not define ‘computer’ and since many instances of revenge porn are conducted from the convenience of our smartphones and tablets. For the avoidance of doubt, the CMA should define computer and that definition should include modern technological devices like smartphones, tablets and iPads.

What can Barbadians do when faced with a revenge porn situation?

You don’t have to be a celebrity like Rob and Blac Chyna or a female like Therese Ho to take full advantage of the law against instances of revenge porn. When faced with this unfortunate situation, you do not have to simply wait for it to ‘blow over’ but you can actively pursue remedies available within the law.

Victims of revenge porn may:

  1. Make a complaint to the police. The wide drafting of Section 14 of the CMA may cover the instances of revenge porn in Barbados making it a summary offence in Barbados.

  2. Seek legal advice as to whether you can and should bring an action against your ex-partner for breach of confidence relying on the regional case Ho v. Simmons and other case law.