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Nudes are Forever: Judicial Interpretations of Digital Technology’s Impact on “Revenge Porn”



In this article I explore judicial interpretations of the relationship between digital technology and non-consensual intimate image distribution (NCIID) (i.e., “revenge porn”). Drawing on my analysis of forty-nine Canadian cases of NCIID, I show that judicial interpretations of digital technology have important influences on how NCIID is understood and responded to in the law. I find that the majority of judges perceive digital technology as making NCIID easier to commit—with the simple “click of a mouse”—and as increasing the amount of harm caused by this act—as digital nude/sexual photos are seen as lasting “forever” and thus as resulting in ongoing and immeasurable harm to victims. These perceptions have substantive impacts on legal rationales and sentencing decisions, with the affordances of digital technology regularly being treated as justifying harsher sentences to denounce and deter this act.
Canadian Journal of Law and Society / Revue Canadienne Droit et Société, 2019,
Volume 34, no. 1, pp. 121–143. doi:10.1017/cls.2019.4
Nudes are Forever: Judicial Interpretations
of Digital Technology’s Impact on “Revenge
Alexa Dodge*
In this article I explore judicial interpretations of the relationship between digital tech-
nology and non-consensual intimate image distribution (NCIID) (i.e., “revenge
porn”). Drawing on my analysis of forty-nine Canadian cases of NCIID, I show that
judicial interpretations of digital technology have important inuences on how NCIID
is understood and responded to in the law. I nd that the majority of judges perceive
digital technology as making NCIID easier to commit—with the simple “click of
a mouse”—and as increasing the amount of harm caused by this act—as digital nude/
sexual photos are seen as lasting “forever” and thus as resulting in ongoing and immea-
surable harm to victims. ese perceptions have substantive impacts on legal ratio-
nales and sentencing decisions, with the aordances of digital technology regularly
being treated as justifying harsher sentences to denounce and deter this act.
Keywords: digital technology, revenge porn, non-consensual intimate image
sharing, Canadian law, digital criminology, sentencing
En me fondant sur la littérature existante, dans cet article, j’explore la manière dont la
relation entre la technologie numérique et la distribution non consensuelle d’images
intimes (DNCII) (c.-à-d. pornodivulgation) a été comprise dans la jurisprudence
canadienne. En m’appuyant sur mon analyse de quarante-neuf décisions canadiennes
en matière de DNCII, je montre que les interprétations judiciaires de la technologie
numérique inuencent largement la façon dont la DNCII est comprise et traitée dans
la loi. Je conclus que la majorité des juges perçoivent la technologie numérique comme
facilitant la perpétration d’infractions de DNCII et également comme ampliant les
torts causés par ces actes. Ces perceptions ont des incidences substantielles sur les rai-
sonnements juridiques et sur le processus de détermination de la peine, les moyens de
la technologie numérique étant régulièrement utilisés an de justier des peines plus
sévères, et ce, dans une optique de dissuasion et de dénonciation de cet acte.
Mots clés : technologie numérique, pornodivulgation, partage non consensuel
d’image intime, détermination de la peine, criminologie numérique
* I would like to thank the reviewers for their instrumental feedback on the rst dra of this article,
it was much improved by their challenging and detailed remarks. I would also like to thank Lara
Karaian, Ummni Khan, and Rena Bivens for their invaluable feedback on this work, this article is
deeply inuenced by their insights and critiques.
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122 Alexa Dodge
Nudes are Forever
Non-consensual intimate image distribution (NCIID)—oen colloquially referred
to as “revenge porn”—has increasingly become an issue of international and popu-
lar concern (Powell and Henry 2017; Yar 2013). Cases of NCIID are now fre-
quently featured in the media, and politicians from around the world are debating
potential responses to this issue. In jurisdictions such as Canada, the United States,
the United Kingdom, the Philippines, Israel, Australia, and Japan, the growing
attention to this issue has resulted in various criminal and civil law responses
(Powell and Henry 2017). While the issue of NCIID pre-dates the popularization
of digital/online technology, the increasingly widespread governmental and media
attention to and legal regulation of this act have been largely spurred by cases
involving digital sharing and have oen been connected to fears about the eects
of online technology (Hasino 2015; Salter and Cros 2015).
In Canada, government responses to NCIID have cast this issue as intimately
related to the advent of digital and online technology. e Canadian governments
decision to create a specic criminal law to respond to NCIID was justied by the
need to address the “dark side” of new digital and online technologies, and this law
was passed via an act named the Protecting Canadians from Online Crime Act (e
Act) (Puzic 2015; Canada 2013). In House of Commons debates on e Act, NCIID
was oen described by government ocials as tting under the umbrella term of
cyberbullying,” with then Minister of Justice Peter MacKay describing NCIID as
a “particularly vile and invasive form of cyberbullying” (Canada 2013). is focus
on new technologies’ role in NCIID has also been common in Canadian media
coverage of NCIID cases, with e Act being commonly referred to as the “Anti-
Cyberbullying Bill” and the issue of NCIID being framed as the tech-specic act of
non-consensually posting intimate images online (Csanady 2016; Puzic 2015;
Tencer 2014). ese responses demonstrate the extent to which NCIID has been
understood as an issue deeply related to digital and online technology.
While a cohort of scholars have begun exploring how understandings of digi-
tal/online technology might broadly impact the legal and extra-legal regulation of
NCIID (Salter and Cros 2015; Hasino 2015; Karaian 2017), scholars have yet to
analyze the way digital/online technology is actually understood in NCIID case
law and how these understandings impact judicial reasoning and sentencing in
practice. us, in this article I undertake a critical discourse analysis (Wodack
2001) of NCIID cases to map the impacts of judicial interpretations of digital/
online technology in cases of NCIID. I nd that the majority of judges perceive
digital/online technology as making NCIID easier to commit—with the simple
click of a mouse”—and as increasing the amount of harm caused by this act—as
digital nude/sexual photos are seen as lasting “forever” and thus as resulting in
ongoing and immeasurable harm to victims. I assert that these perceptions have
substantive impacts on legal rationales and sentencing decisions, with the aor-
dances1 of digital/online technology regularly being treated as justifying harsher
1 An aordance is a quality/property that inuences how something can be used. In terms of tech-
nologies, these qualities/properties inuence how users interact with the technology (Boyd 2011).
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Nudes are Forever 123
sentences to denounce and deter this act. us, I argue that judicial interpretations
of digital/online technology can signicantly inuence the way NCIID is under-
stood and responded to in law and, therefore, that more attention must be paid to
various judicial conceptions of new technologies’ impacts.
In this article, I draw on my analysis of forty-nine English-language2 Canadian
cases of NCIID to map the history of pre-digital cases of NCIID, to demonstrate
what exactly is new about NCIID in the digital age, and to analyze how legal
conceptions of digital/online technology inuence legal understandings of and
responses to NCIID. e forty-nine legal cases analyzed for this research were
located through a Boolean search of three prominent legal databases3. For the pur-
poses of this research, NCIID cases were dened as those wherein a person is
accused of non-consensually sharing/disseminating a photo or video4 that depicts
nudity, partial nudity, or explicit sexual acts5. To gain insight into the various ways
NCIID is responded to in law, this dataset includes both youth and adult cases of
NCIID and both civil and criminal law responses to this issue. While NCIID has
been specifically recognized as a criminal offence within Canadian law since
section 162.1 was added to the Criminal Code in 2015, my research is interested in
understanding how these cases have been responded to in both the past and pres-
ent, so database searches were not limited by any time period. e oldest cases
found were from 1993, and cases were collected up to and including April 2018.
My analysis of this case law dataset nds that legal interpretations of digital/online
technology signicantly impact what responses and sentences are seen as appro-
priate in these cases. As an increasing variety of legal cases now require an inter-
pretation and consideration of digital/online technology (Yar 2013), these ndings
spark important questions about the impacts of judicial anxieties regarding new
technologies and judicial conceptions of digital memory, digital dissemination,
online networks, and “cyber” harms.
A Pre-Digital History of NCIID
Despite much media and governmental discourse linking NCIID with the advent
of digital technology and the dangers of the digital age (e.g., Puzic 2015; Csanady
2016; Canada 2013; MSNBC 2013), this act pre-dates the development and popu-
larization of digital technology (Hasino 2015; Salter and Cros 2015). e his-
tory of nude and sexually explicit photographs is nearly as old as the history of
2 Only case law available in the English language is considered in this research due to my lack of
uency in the French language.
3 Additional details regarding the methodology for this project can be found in the appendix.
4 is denition includes images that were consensually created as well as those that were non-
consensually created.
5 While the parameters of this denition would include many cases of child pornography (due to
nude images of those under the age of 18 constituting child pornography in Canada), I have
only included cases where child pornography charges were used if the case involved youths non-
consensually sharing images of other youths or adults sharing images of close-in-age youths with
whom they had been in a consensual and legal sexual relationship. is choice is based on the
belief among a cohort of scholars that such cases should be treated as acts of NCIID and that the
label of child pornography should only be used in cases that include the power-imbalance of
adults victimizing children (Dodge and Spencer 2018; Shari and DeMartini 2015).
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124 Alexa Dodge
photography itself (Whitman 2004); however, the point at which these images
were rst non-consensually shared is dicult to determine. One potential begin-
ning is an incident in 1867 that draws parallels to the 2014 “Fappening” wherein
nude photographs of multiple female celebrities, such as Jennifer Lawrence, were
non-consensually shared online. According to Whitman (2004), in 1867 a photog-
rapher attempted to disseminate private “amorous” photographs he had taken of
e ree Musketeers author Alexandre Dumas posing with his mistress Adah
Isaac Menken. Aer a legal battle over the copyright versus privacy rights related
to these images, the photographer was forbidden from disseminating photographs
of Adah in her underwear but was allowed to share other photographs from the
session showing the couple in “amorous poses.” e dissemination of these photos
led to an “international scandal” for the couple (Whitman 2004, 1176). is dem-
onstrates that issues of privacy regarding intimate images certainly predate the
advent of digital technology.
While concerns about new technologies’ eects on privacy have “pervaded
personal photography from its inception” (Hand 2012, 11), Salter and Cros (2015)
describe the history of NCIID specically as related to the popularization of the
Polaroid camera. First on the market in 1948, the new technological abilities of the
Polaroid camera—that is self-developing lm that did not require professional
processing—were increasingly used to easily and condentially produce sexual
images. is technology’s use as a tool in sexual life was widely known by at least
the 1960s (Bonanos 2012), and by the 1970s, both the Polaroid6 and the home
video camera were known for allowing individuals to produce and share intimate
photographs and videos (Salter and Cros 2015). Unfortunately, along with this
new ability to easily and condentially create sexual images came more opportuni-
ties to misuse these materials by non-consensually sharing them or threatening to
do so (Salter and Cros 2015). e beginning of the trend of celebrity “sex tape”
leaks in the late 1980s—such as that experienced by Rob Lowe and Jayne Kennedy—
demonstrates public knowledge of the issue of NCIID before the popularization of
digital and online technology7 (Longsta 2018; Salter and Cros 2015).
As demonstrated by the case from 1867, cases at least partially analogous to
NCIID have a long legal history that predates the widespread adoption of digital
and online technology. In modern law, NCIID has been a documented issue at
least since the 1980s. e 1984 case of Wood v Hustler Magazine Inc. in the United
States was the result of Hustler magazine publishing an amateur nude photograph
of a woman named LaJuan Wood without her consent (Salter and Cros 2015).
Wood’s neighbour had broken into her house, stolen private nude photos her hus-
band had taken of her, and sent them to the magazine claiming to be Wood. Wood
was awarded $150,000 in compensatory damages based on a nding of the public
disclosure of private facts (Wood v Hustler Magazine Inc 1984).
6 Sturken holds that while the Kodak camera was marketed and understood as a tool for document-
ing the nuclear family, Polaroid was understood as being “about photography and parties, swing-
ing culture, sex, and hipsters” (Sturken 2016, 100–103).
7 See Gareth Longsta ’s (2018) “Celebrity Sex Tapes” in e Routledge Companion to Media, Sex
and Sexuality for additional information on the history of the celebrity sex tape.
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Nudes are Forever 125
My case law analysis nds that cases of NCIID have also existed in the Canadian
legal context for much longer than is oen implied by government and media
responses. For instance while the case of Doe v ND (2016), in which Jane Doe’s
ex-boyfriend non-consensually posted a sexually explicit video of her on a por-
nography site, is widely heralded as the rst Canadian civil suit against an act of
NCIID (Csanady 2016; Doe v ND 2016), the 1993 case of LaRose v Yavis predates
Doe by twenty-three years. In LaRose v Yavis, the defendant posted nude photo-
graphs of his ex-girlfriend in public washrooms along with her telephone number
and statements implying she would exchange sexual acts for cocaine. is case
resulted in an armative nding of defamation and violation of privacy and the
plainti was awarded $132,539 in damages (LaRose v Yavis 1993). While the
defence in Doe v ND argued that the precedent-setting nature of the case could
create a “new and dangerous area of tort law with respect to an invasion of privacy
in the new electronic era of ‘sexting’” (Csanady 2016), the case of LaRose v Yavis
demonstrates that there is precedent for civil responses to NCIID. e ruling in
Doe v ND of $141,708.03 in damages was recently set aside aer the defence suc-
cessfully argued that, because the defendant was not represented in the original
trial, a new trial was necessary due to the “precedent-setting” nature of the case
(Porter 2016). is nding demonstrates how the construction of NCIID as an
issue specic to the digital age can have important eects on the legal reasoning in
and responses to these cases.
Other non-digital Canadian cases dealing with NCIID include the 1993 case of
Milton v Savinko, wherein the plainti alleged that, aer she accidently le a top-
less vacation photo of herself in an acquaintances jacket she was borrowing, the
acquaintance refused to return the photo and showed it to one of their mutual
friends (Milton v Savinko 1993). e criminal case of R v Lepore (2001) demon-
strates another example of a case of NCIID that did not involve the use of digital
or online technology. R v Lepore describes a violent domestic relationship between
KG and Mr. Lepore that included Mr. Lepore distributing a sex tape the couple
consensually made together in 1997. Mr. Lepore distributed the VHS tapes by
placing them in the mailboxes of at least ten of the victim’s neighbours along with
a note providing the victim’s home and work numbers and suggesting that she
could be reached to provide sexual favours (R v Lepore 2001). Additionally,
although the 1994 case of R v JT is based on charges of assault unrelated to the act
of NCIID8, the facts of this case describe JT committing two acts of NCIID due to
being angry with the victim and wanting to control and punish her. In the rst
instance, he gave a nude photograph of her to a person near her work that she saw
daily, and in the second instance, he le nude photographs outside of her friend’s
apartment (R v JT 1994).
Additional evidence of the potential extent of NCIID prior to its widespread
online presence is demonstrated by the existence of multiple cases where,
although images were not actually distributed, the threat of distribution was made.
8 R v JT (1994) is not included in the dataset because the act of NCIID was not central to the case
or responded to in law.
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126 Alexa Dodge
For example, in the 1988 case of R v Guerrero, the complainant testied that she
only agreed to have sex with the accused because he threatened to send nude pho-
tographs of her to her school if she did not (R v Guerrero 1988).9 In the 1991 case
of R v DKP, a man was convicted of extortion for calling his ex-partner’s brother
and mother to tell them he was upset about the breakup and would disseminate
nude photographs of his ex-partner if he were not given $4,000 (R v DKP 1991).
ese cases show that the issue of having intimate images non-consensually
shared—or the threat of sharing—aected individuals long before the widespread
media and governmental attention to this issue.
Additionally, even in our current digital age, online and digital technologies
are not always a main component in cases of NCIID. For instance, in the 2010
custody case of FR v AKA it is noted that FR distributed photocopied yers pictur-
ing nude photographs of his ex-partner on car windshields and in mailboxes in the
neighbourhood where AKA’s mother lived (FR v AKA 2010)10. Such examples
demonstrate that NCIID not only pre-dates the digital age, but that the role digital
technology plays in contemporary cases also remains variable.
Law, New Technologies, and Techno Panics
It is important to understand the consequences of various interpretations of new
technologies in law because, as discussed further below, interpretations may be
used to support either more carceral or more lenient responses to oences involv-
ing new technologies. A focus on technology as creating new dangers and crimes
can elicit panicked social and legal reactions that argue for new, tougher regula-
tions to respond to the seemingly novel and daunting dangers of a given technol-
ogy. at is, oences involving new technology oen inspire moral panics (Baym
2010). Such responses to new technology, sometimes called techno panics (ierer
2012; Herrman 2017), rely on the age-old tendency to fear new technologies and
to blame them for social issues (Baym 2010; Bluett-Boyd et al. 2013; Hasino
While new technologies oen aggravate or modify pre-existing issues in
ways that must be accounted for, it is uncommon for them to actually create
wholly new concerns and oences (Ellison and Akdeniz 1998; Yar 2013; Baym
2010). ose working at the intersection of law and technology have warned that
legal actors must be careful to avoid techno panic type responses. Legal actors
mustn’t become so focused on the role of new technology in an oence that they
respond in ways that misconstrue or overblow the nature of the harm caused and
the extent to which the issue is new and in need of a novel regulatory response
(Calo 2015). e above history of NCIID demonstrates that digital technology
has not created the issue of NCIID and that the role digital and online technologies
9 As described in the appendix, those cases involving threats to distribute but no actual distribution
are not included in the dataset. However, this does provide additional context of NCIIDs history.
The use of NCIID as a threat within a case of sexual violence can also be seen in the cases of
R v Davis (1999) and R v S (2004).
10 is case is not included in the dataset as the act of NCIID was only used as evidence rather than
being responded to in law.
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Nudes are Forever 127
play in these cases varies. us developing a nuanced view of the variable role
that digital technology plays in these cases is necessary for ensuring measured
legal responses to this issue.
e potential for the presence of digital and online technologies to inuence
legal reasoning and responses can be seen in a number of NCIID cases. In a 2006
case of “cyber stalking”11 that included an act of NCIID, the judge asserted that
“a penitentiary term is very possible, particularly with resort to electronic devices
where the harassment and the harm far exceeds, or at least is a whole new dimen-
sion to […] harassment” (R v Barnes 2006, at para 35). Likewise, in a 2004 case
in which the oender secretly posted nude images of his girlfriend online, the
judge reasons that a harsher sentence—of six months imprisonment and two
years probation—is required to communicate the message that “we had better
pay some respect here to these computers that we’re dealing with” (R v MK 2004,
at para 8). As these comments demonstrate, interpretations of the role of digital
technology can have substantive eects on legal responses to cases. is high-
lights the need to analyze how digital technology is being understood and
wielded in law. In the following section I map legal interpretations of the impact
of digital technology in NCIID cases and trouble common legal understandings
of digital technology’s impact on NCIID.
Digital Technology’s Impact
While acts of NCIID have not—and do not—always involve the use of digital tech-
nology, the advent of digital technology has changed and amplied this issue in
notable ways. e frequency and notoriety of NCIID has surely increased in recent
years. Websites devoted to the posting of non-consensual intimate images (e.g.,
Hunter Moores 2010 creation of and the trend of non-consensu-
ally posting intimate images on pornography sites (Tsoulis-Reay 2013; Bates 2017)
led to the 2010 coining of the term “revenge porn” to describe cases of NCIID
(Tsoulis-Reay 2013). e increasing ubiquity of cases of NCIID has been inu-
enced at least in part by the aordances of digital and online technologies that
make it much easier to create, copy, and share images (Boyd 2011). While the issue
of NCIID is not new and specic to the digital age, the particular features of digital
technology in conjunction with online/networked technologies have certainly
aected—at least—the ease and scope of many cases of non-consensual sharing.
Boyd (2011, 45) details how the aordances of digital technology—in conjunc-
tion with the capabilities of online and networked technology (e.g., social media)—
allow digital information to be easily copied (replicability), easily shared with
large audiences (scalability), easily recorded and archived (persistence), and eas-
ily accessed by others and found in the future (searchability). In the context of
NCIID, replicability and scalability have increased the ease with which an act
can be committed and the ease with which a nude/sexual image can be spread to
11 e judge in this case referred to Barness oences as “cyber stalking.” e actual charge laid was
criminal harassment. Mr. Barnes was found guilty of criminal harassment and received a sentence
of twelve months’ imprisonment and three years’ probation.
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128 Alexa Dodge
a large audience. Additionally, persistence and searchability have increased/extended
the impact of this act in some cases by allowing nude/sexual images to be found by
others and to potentially reemerge and aect a victim in the future. In this section,
I will describe how these eects of digital technology are understood in law.
My analysis of forty-nine legal cases from across Canada found that the
aordances of digital technology were seen as having signicant impacts on the
nature of NCIID. e main points discussed in the case law reect the impacts
of scalability, replicability, persistence, and searchability described by Boyd. In
general, digital technology was seen as making NCIID easier to commit (via
replicability and scalability) and as increasing/extending the harm caused (via
scalability, persistence, and searchability). I nd that the role digital technology
is seen as playing in a case of NCIID oen inuences legal interpretations of the
level of harm caused and the extent to which denunciation and general and spe-
cic deterrence12 need to be emphasized. us, interpretations of digital technol-
ogy regularly inuence sentencing decisions in cases of NCIID. While recognition
of the impact of digital technology in these cases is necessary, I demonstrate that
legal interpretations of these impacts need to be further nuanced and that the
eects various interpretations of digital technology can have on legal responses to
NCIID need to be recognized.
Digital Dissemination: Scalability and Replicability
In response to a case of NCIID, Canadian criminal lawyer Deanne Gaar com-
mented, “in this day and age, with Internet and digital images which can be shared
in a millisecond, you lose control over [nude images] if you’re placing the trust in
someone else” (Zeidler 2014). is quote implies that the aordances of online and
digital technology make NCIID a bigger threat, as it is easier to commit and thus
more likely to occur. e ability to copy and disseminate non-digital nude or sex-
ual images is limited, at least in part, by the time and eort required to make copies
and to physically share them. For instance, when “sex tapes” were recorded on
VHS, an act of NCIID might require accessing two VHS players and blank tapes
and then individually recording each copy. And disseminating these copies would
require, for instance, driving to a victims neighbourhood to distribute the videos
door-to-door. e video could only be further spread by physically sharing the
tape with other individuals; as an Ebony magazine article discussing the above
noted victimization of Jayne Kennedy simply put it, before the Internet and digital
technology, videos and photographs had to be physically “passed from perv to
perv” (Bouboushian 2014). On the other hand, digital images are made of binary
digits, or bits, that allow information to be quickly shared with unprecedented ease
and on an unprecedented scale (Hand 2012; Boyd 2011). Although NCIID is not
a new phenomenon, in the digital age a wider distribution of nude/sexual images
12 Specic deterrence is focused on punishing the individual involved in the case in a way that will
deter them from committing future criminal acts, while general deterrence aims to send a mes-
sage about how such acts will be punished that eectively deters individuals in the community at
large from committing the same act. It should be noted that general deterrence cannot be used in
youth cases in Canada (Youth Criminal Justice Act 2002).
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Nudes are Forever 129
(to a victim’s family, friends, and coworkers) can now be accomplished with a few
clicks on a digital device (e.g., by posting an image on social media).
Digital technology is designed with the assumption that users want their infor-
mation shared, and thus “the design encourages the widespread distribution of
content” (Hasino 2015, 147). is has led some scholars to refer to digital tech-
nology as being “promiscuous” and “slutty” (Calo 2015; Chun and Friedland 2015).
is promiscuous digital technology works in tandem with the equally “promiscu-
ous” Internet to allow people from around the world to easily and cheaply access
information (Calo 2015). e aordances of digital replicability and scalability
challenge peoples sense of control” by allowing for almost instant sharing to mul-
tiple people or to publicly available websites (Boyd 2011, 49). As a Winnipeg Police
ocer recently commented, “we all know as soon as you’ve uploaded an image
that it can be shared hundreds of times within minutes” (Winnipeg Free Press 2017).
Likewise, in the House of Commons debates on “cyberbullying” in November of
2013, Peter MacKay described digital and online technologies as making intimate
images “dicult to control” and as increasing the “speed and the scope in which
statements and images can be made and shared with many others” (Canada 2013).
ese alterations to scalability and replicability are now being grappled with by
victims of NCIID and by the government and legal ocials who are attempting to
respond to this issue.
In the Canadian case law, judges commonly expressed the belief that acts of
NCIID have been made easier to commit and more impactful due to the fact that
digital images are easier to copy (e.g., replicability) and to widely share (e.g., scal-
ability). In terms of the ease of replicability, multiple judges refer to the ability of
oenders to create impactful privacy violations through the simple click of a
mouse. Judges express that “with the single click of a mouse, information can be
circulated instantly and globally” (R v DaSilva 2011, at para 33, emphasis added)
and that “in this case the instant click of a mouse circulated harmful and damaging
material” (R v Fader, 2014, at para 25, emphasis added). ese and other cases
further hold that online forms of NCIID “can be particularly harmful because the
content can be spread widely [and] quickly” (R v NG & GG 2015).
While the ease of the “click of a mouse” could be used to argue that oenders
should receive more lenient sentences due to a lower level of intent/planning,
many judges argue that the ease of digital sharing requires a harsher response to
act as a deterrent to others who wish to commit this easy oence. For example,
in R v DaSilva (2011) the judge goes on to explain that a strong sentence is nec-
essary to act as a general deterrent to the “increasingly common” use of new
technologies in the commission of crime: “once [digital information is] circu-
lated, the ability to undue [sic] any harm caused, is very limited […] Given the
common use of social networking sites and their potential for enormous harm,
general deterrence plays a signicant principle in this sentencing. A clear mes-
sage to all users of social networking sites is a valuable sentencing objective in
this case” (at para 33–35).
In this case, a sentence of six months of incarceration is justied, in part, by the
need to emphasize general deterrence due to the ease with which this act can be
committed. Likewise, as part of the reasoning for a sentence of two years
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130 Alexa Dodge
incarceration in R v Fader (2014),13 the judge argues that it is necessary for the
court to emphasize not only specic deterrence but also general deterrence due to
the fact that “harmful and damaging material” can be circulated with “the instant
click of a mouse” (at para 25). e judge asserts that this sentence will provide
general deterrence as it will “get […] the word out that if people send sexually
explicit photos and videos out into the stratosphere, periods of imprisonment are
likely” (R v Fader 2014, at para 25–26). It is important to note here that, under
Canadian sentencing principles, the use of general deterrence is not allowed in
youth cases (Youth Criminal Justice Act 2002); therefore this specic nding would
only apply in adult cases, though it may manifest in other—less explicit—ways
within youth court cases as well.
e legal rationale of “just one click” that I’ve identied in cases of NCIID can
also be found in child pornography case law. Some legal scholars argue that the
ability to “gather hundreds of [child pornography] images with the click of a
mouse” problematizes assessments of oender blameworthiness that are based on
the quantity of images downloaded (Rogers 2013, 1023). ey assert that the ease
of accessing large amounts of digital child pornography results in the need for
“a more nuanced approach that focuses on case specics […as a] measure of
harm” (Rogers 2013, 1027). However, in practice, despite attempts by defence law-
yers to use “one click” as a defence—as in R v CWF (2006), wherein the defence
argued that “vast quantities of material can be downloaded and saved with one
mouse click” (at para 10)—the ease of download and dissemination is oen used
as an argument for harsher sentences in child pornography case law (Rogers 2013;
also see R v TLB 2007 and R v Moen 2006). While possession of child pornography
was much more dicult to commit in the pre-digital age—requiring concerted
intention, eort, and funds to locate, purchase, and receive pricey magazines, pho-
tographs, and videos—the ability for “anyone [to] obtain it at the click of the inter-
net search engine” is oen used to argue for harsher sentences to send “a strongly
punitive and deterrent message” (R v Moen 2006). It seems that, in both child
pornography case law and NCIID case law, the perceived increase in ease caused
by “one click” digital aordances oen wins out over an interpretation of “one
click” as diminishing the need for forethought and thus as lowering oender cul-
pability. Harsher sentences aimed at general deterrence are oen utilized to com-
bat user-friendly digital devices that are perceived as making it far too easy for
us to share private images. Additionally, it is possible that “techno panic” type
thinking inuences these harsher responses, as the presence of online and digital
technologies in these cases could make them appear more dangerous in all
cases—precluding the possibility of considering the nuanced role of digital tech-
nology in dierent cases—and make the harms of image sharing appear novel
and in need of an enhanced reaction. e legal discourse seems to represent a
widespread, though not universal, argument for punishing cases more harshly
due to the aordances of digital technology.
13 Other considerations include the fact that Mr. Fader had committed an act of NCIID against a
previous partner in R v Fader (2009) and the fact that this act was carried out in the context of
ongoing acts of domestic abuse.
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Nudes are Forever 131
While the above examples show interpretations of the ease of digital sharing as
requiring longer sentences to act as a general deterrent, there is still the potential
for the user-friendly and tempting qualities of digital devices to support more
lenient sentences. For instance, in R v Warrington, Mr. Warrington’s court-ordered
apology letter seems to use the concept of “one click” to partially redeem his
actions by placing some of the blame on the aordances of digital and networked
technology (Port Coquitlam Provincial Court 2013). Mr. Warrington, who dis-
seminated images on social media of an alleged sexual assault that took place at a
rave in British Columbia (Stueck 2013), wrote in part:
To think that just the thoughtless push of a button could change so many
outcomes is hard to believe and yet so easily overlooked until the conse-
quences surface. As I am sure you are well aware, our generation has become
so reliant on social media […]. I am sorry to say that I was one of those
people, so dependent on this window into other peoples lives that I did not
realize the power it held until it was used irresponsibly. It was all too easy to
upload and share something that wasn’t mine to share. Just a few clicks and
it changed your life and how the world viewed the person you are. at ease
of access is not something to be taken as lightly as so many do and I hope
that they are able see that from what has happened here. (Port Coquitlam
Provincial Court 2013, emphasis added)
e technology-focused view of NCIID that Mr. Warrington describes allows the
aordances of technology to partially take the blame in this case. He describes the
technology as extremely easy to use, thus allowing him to share the images with-
out actually thinking about it—it was just the “thoughtless push of a button.” We
might call this the “just one click” defense. is defense deects blame from the
oender by relying on a perspective of technological determinism that sees new
technologies as “causal agents” that act on individuals in ways they have “little
power to resist” (Baym 2010, 24). e case of R v Zhou (2016) demonstrates both
the potential and limits of the “one click” defense, when the judge rejects the idea
that Zhou’s actions were a quick mistake: “ought and planning went into post-
ing the photos. Mr. Zhou would have to have chosen which photos he would post,
think about the comment he would post with them, and according to the agreed
statement of facts, he checked the comments of the viewers with some frequency.
is was not a momentary lapse of judgment or a thoughtless one-time mistake. It
was a continuing oence. For all of these reasons, I would rate the degree of
responsibility of the oender as high” (at para 25–27).
e reasons for sentencing in Zhou demonstrate that while this particular
oence was seen as requiring notable planning and revisiting, cases where the
posting was more akin to “a momentary lapse of judgment or a thoughtless one-
time mistake” (e.g., the few clicks required to share a single image to Instagram
without any comment and without returning to check for comments) could be
treated with more leniency due to understanding the ease of posting.
is potential for leniency due to the ease of digital copying and sharing is
arguably supported by conceptions of digital technology as implicitly “leaky” or
“promiscuous” (Calo 2015; Chun and Friedland 2015). is conception of tech-
nology has been used by police and “sexting experts” to argue that having nude
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132 Alexa Dodge
images non-consensually shared should be the assumed outcome of sending
images in the digital age (Zeidler 2014; Alex 2017). For instance, the under
Bay Police Service recently published a “reminder” to individuals that “anytime
they send nude images of themselves to other people there is always a risk of the
photo being uploaded to le sharing sites or social media pages without their
consent” (Alex 2017). Likewise, the defence in the case of Doe v ND (2016)
argued that the monetary award to Jane Doe was too high considering that Doe
sent the intimate video knowing that “there [was] always the risk of it becoming
public” (Csanady 2016). These responses may imply that sexual images are
bound to be disseminated—or that victims should have at least realized the
risk14—and therefore that offenders’ blameworthiness is diminished. Legal
interpretations of the affordance of digital replicability can have significant
impacts on understandings of offender culpability, as they influence the level
of intent attributed to oenders.
In addition to considering the ease of digital copying, judges also weighed the
level of digital dissemination (scalability) when justifying sentencing decisions
and determining the gravity of an oence. For example, in R v PSD (2016), the fact
that digital images were forwarded to two friends—rather than posted publicly
online—was seen as diminishing the gravity of the oence. e judge, here, argues
that the dierence in dissemination between this case and a case such as R v Zhou
(2016)—wherein intimate images were posted on a pornography site and viewed a
recorded 1,333 times—is signicant: “In the end, I conclude that, while the gravity
of the oence in general is signicant, the circumstances of this particular case
are less egregious than, for example, a case involving signicant planning and
forethought and resulting in a transmission of identiable intimate images
widely distributed on the internet. e sentence must be proportionate to those
considerations” (at para 15).
Likewise, in R v AC (2017)—wherein a woman’s nude photos were sent via
private Instagram message to her employer and to several friends from her
university—the judge notes “the absence of circumstances that would be even
more aggravating. Mr. A.C. posted the photographs once only. He circulated them
amongst a rather small number of people” (at para 85). In this case, the judges
perspective on limited digital dissemination contributes to his decision that
imprisonment is not required and that the oender should be given a conditional
discharge. However, while the judge in this case understands the workings of digi-
tal and networked technology in a way that leads to his perception that these pho-
tos were not widely shared, the victim perceived that Mr. A.C. “has shared my
body with [the] entire world. Friends, colleagues, classmates, people who I interact
with and see every day of my life” (R v AC 2017, at para 51). ese dierent inter-
pretations of the scalability of digital images shared via Instagram message clearly
reveals dierent understandings of digital distribution.
14 It is important to note that these responses oen do not account for the fact that not all images in
NCIID cases are created consensually at the outset. Some cases involve images that were taken
surreptitiously or received through coercion.
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Nudes are Forever 133
In both R v PSD and R v AC the fact that images were sent to a select few
people was seen as making the oences less egregious; however, these interpreta-
tions do not fully account for the ways these images could still be saved on vari-
ous devices and archives—and therefore be at risk for a later leak. Due to the
ease of spreading and the fact that digital images are easily saved and shared in
the future, an image that is shared with even just one person has the potential to
be disseminated or leaked in the future. e judge in R v Greene (2018) takes this
fact into account saying that, while Mr. Greene did not widely share the images,
“when Mr. Greene sent the video to X’s friend, he no longer had any control
over where it subsequently went. is increases his level of moral responsibility”
(at para 65)15. ese varying perspectives on the potential spread of a digital
image complicate legal rationales and sentencing decisions inuenced by the
extent an image has been shared.
e leaky nature of digital images and digital devices creates questions about
whether or not we think the law should account for the potential leak and for the
potential harm to the victim in the future (these questions will be discussed further
in the sub-section on digital memory). e importance of these questions becomes
even more pronounced in light of the fact that conceptions of digital spread were
even considered as an aggravating factor in a case where images were not actually
shared. In a 2017 case in Newfoundland, Kyle Hunt threatened to share intimate
photos of his ex-girlfriend on Facebook aer she broke up with him. e judge in
this case asserted that a strong sentence was required due to the fact that “a present
day threat to release intimate photographs through social media sites allows for
the dissemination of such photographs on a worldwide basis” and “technology
also makes it impossible for the victim to limit circulation or to retrieve the pho-
tographs. is modern day form of extortion is much dierent and more serious
than older forms of extortion. e sentencing for such oences must reect the
changes in the sharing of information and the impact upon victims” (CTV News
2017). Although the Crown requested a six-month prison sentence, the judge
imposed a nine-month sentence due to this interpretation of the seriousness of
digital spread and of crimes involving new technologies.
e responses in R v PSD and R v AC also do not fully account for the potential
greater impact of having nude photos shared with a few people that you see every
day versus hundreds of people that you may never meet. As the victim in R v AC
(2017) put it, her image was not just seen by a few random people, but by “people
who I interact with and see every day of my life” (at para 51). e case of R v MR
(2017) provides a salient example of the fact that the extent of an image’s dissemi-
nation may not be the most important factor for determining the extent of harm
caused or the malicious intent of the oender. Here, the images were only shared
with the victims’ family members (via email) and were not posted publicly online;
however, due to the fact that the victim came from a very traditional religious
family, the limited sharing of these images had what the judge describes as an
15 Mr. Greene received a sentence of ve months’ imprisonment for the Canadian Criminal Code
s.162.1 charge of disseminating an intimate image without consent.
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134 Alexa Dodge
“immeasurable” impact on both the victim and her family (R v MR 2017, n.p.).
us, judges must be careful when basing the impact of a given case of image shar-
ing on the extent of digital dissemination involved. e impact of a digital image
shared with a few people known to the victim will not necessarily cause less harm
than an image shared with hundreds of people on a pornography site. Judges in
NCIID cases also need to assess several other variables impacting levels of harm in
these cases, such as: whether image dissemination took place within a broader
context of domestic violence or harassment, whether images were shared along
with the victim’s contact information, and how explicit the images are (Dodge
While the aordances of digital technology make images easier to widely
share, it is also necessary to nuance discussions of exactly how much this changes
the impact of NCIID and the nature of dissemination in particular cases. For
instance, the case of R v Agoston (2017) involves a digital image, but the spread in
this case is very limited. In this case, the image is viewed by two people who are
shown the image on Mr. Agostons cellphone, but the image is never digitally cop-
ied or disseminated16. On the other hand, the spread of pre-digital images was
sometimes quite widespread. For example, in LaRose v Yavis (1993), images were
posted in public washrooms, and in FR v AKA (2010), yers were distributed
throughout a neighbourhood. e dierence here between showing an image and
then having it returned to you versus publishing or displaying an image to a wider
audience is therefore not one that is determined by the presence of digital technol-
ogy in a case. While the aordances of digital technology can allow images to be
shared more easily and widely, the substantive impact of these aordances is highly
case specic, and a nuanced understanding of digital technology and online plat-
forms to determine this impact.
Digital Memory: Persistence and Searchability
e eects that the aordances of digital technology have had on the persistence
and searchability of information have been at the forefront of popular understand-
ings of NCIID in the digital age, as NCIID is now seen as having potentially life-
long reputational impacts (Bailey 2015; Hasino 2015; Dodge 2016). For instance,
during a discussion about revenge porn on MSNBC, one of the hosts begins by
asking “how long will it be before we learn that, in this day and age, anything you
do in your digital life is forever” (MSNBC 2013). e huge capacity for digital stor-
age and the ease with which digital archives can be searched change both what and
how we remember in the digital age. Hand asserts that the aordances of online
digital archives are “reshaping individual and collective memories” as they allow
“previous thoughts, words, images, and deeds [to] be recalled, reworked, and
reected upon again” (Hand 2016, 270).
16 e particular dynamics of this case are used to justify a conditional discharge, supported by the
following factors: the “extremely limited” (Agoston 2017, at para 17) distribution of the images;
the fact that Mr. Agoston did not plan to obtain the images (his co-worker solicited the images
while using Mr. Agoston’s phone); the oender’s lack of criminal record and choice to plead guilty;
his remorse; and the fact that he adhered to stringent bail conditions for two years.
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Nudes are Forever 135
e impact of these changes on memory in the digital age is further amplied
by a changing relationship to photographs. Digital camera technology has become
ubiquitous, and the widespread inclusion of cameras as part of smartphones
means that, for many of us, our cameras are always with us (Battye 2014). As a
result of smartphones and social media sites that allow (and encourage) users to
share photos, both photo creation and sharing have become an extremely com-
mon and frequent activity for many people (Hand 2016; Sturken 2016). e fact
that 350 million photos are uploaded to Facebook per day demonstrates both the
ubiquity of digital photo-sharing and the ways that photography has become
“networked,” as photographs are now regularly created for the purpose of visual
communication rather than for memory preservation purposes (Venema and
Lobinger 2017; Hand 2012). Furthermore, while Sontag (2003, 174) once wrote
that “photographs are fragile objects, easily torn or mislaid, digital photographs
are now seen as excessively persistent. In addition, where once most photos were
shown to only a few friends and family members, they now easily circulate on
social media platforms, websites, and via text and instant message (Battye 2014).
While the move towards “the structuring of life to create photographable
moments” has been underway at least since the introduction of the “Kodak
moment,” the social media focus on documenting and communicating our lives
through pictures has increased the ubiquity of photography in unprecedented
ways (Sturken 2016, 100).
The affordances of digital memory create an environment in which non-
consensually shared images have come to be seen by many victims as a perma-
nent blow to their reputation (Bailey 2015; Chun and Friedland 2015; Langlois
and Slane 2017). For instance, young women now commonly report fears that
the sharing of an “inappropriate” sexualized image “could expose them to per-
manent reputational harm and social ruin” (Bailey 2015, 29). And these fears are
encouraged by police and child protection agencies that advance this claim as a
scare tactic to dissuade youth from both consensual and non-consensual inti-
mate image sharing (Karaian 2014; Dodge and Spencer 2018). Scholars also
express concerns that digital memory increases the impact of NCIID, such as
Bates’ assertion that “once a photo is posted online, it is challenging to com-
pletely remove from the Internet, which means the harm is continuous and long
lasting” (Bates 2017, 23; Bailey 2015; Hasino 2015). e ability to manage our
identities and reputations is an old issue that is reinvigorated by the digital age,
wherein online proles are curated to represent our identities, and information
about who we are and what we’ve done can be saved and searched for online
(Boyd 2011; Handyside and Ringrose 2017; Wagman 2016; Langlois and Slane
While we oen think of the act of forgetting something as negative and remem-
bering as positive, in the digital age we hear expressions of nostalgic longing for
forgetting (Mayer-Schonberger 2009). ese dreams of deletion are spurred by
fears of information—such as intimate images—returning to haunt us (Wagman
2016; Bailey 2015). is fear of a digital haunting is strengthened by the assertion,
questionably supported yet increasingly common, that universities and prospec-
tive employers are regularly sleuthing online and disqualifying applicants who
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136 Alexa Dodge
have had nude photos shared17 (CBC News 2016; Bloom 2016; Maru 2018;
Angelides 2013). News articles and education campaigns regularly warn youth
that employers and university admissions sta will look at their online presence
and social media proles and that they could “miss out on an opportunity or never
achieve a goal of theirs” due to having nude photos leaked online (CBC News
2016; Maru 2018). e anxieties of digital memory are vividly expressed in the
Victim Impact Statement included in R v Zhou (2016): “ere was no way I could
erase the images o of the computers of the people who downloaded them. ere
was no way I could prevent these images from surfacing in the future and destroy-
ing my career and life that I have worked so hard to build. I have never felt more
violated, belittled, and vulnerable” (at para 3).
In response to fears such as these, sites like and oer to manage your online reputation as it is the “key to
success in our digital world” (Wagman 2016, 116), and individuals from around
the world have begun to demand—sometimes successfully—the “right to be for-
gotten” (Tirosh 2017). Scholarly and media discussions of digital memory oen
cite NCIID as the ultimate example of why we should be concerned about digital
archives, arming the digital intimate images role as a menace that will live on
forever (Wagman 2016; CBC News 2016; MSNBC 2013).
e ubiquity of photography coupled with the aordances of digital memory
creates anxieties that “the end of forgetting” (Mayer-Schonberger 2009) might indef-
initely extend the harm of having an image shared non-consensually (Dodge 2016;
Bailey 2015; Kitchen 2015). is understanding of digital memory’s eect on NCIID
is one that is commonly held in Canadian case law. Many judges assert that the harm
caused by NCIID is amplied by the fact that digital images can exist and continue
the violation of NCIID “forever.” In R v Schultz (2008), the judge comments that the
“violation of the complainant’s privacy rights may continue indenitely given the
nature of the Internet” (at para 45, emphasis added), and in R v W (2014), the judge
comments that “there is the potential that the video will be circulated in the future
and be available forever” (at para 20, emphasis added). ese quotes demonstrate
that many judges see digital memory as increasing the harm of NCIID, because
the impact of the act is seen as ongoing. From this perspective, as demonstrated in
R v Korbut (2012), the harm of NCIID can be seen as “unquantiable” (at para 17),
resulting in the need to consider not only the harm experienced thus far but also
the potential harm the victim could experience in the future.
is perspective is based on understandings of digital images as dicult—or
impossible—to control or delete. In R v Korbut (2012), the need to consider the
ongoing harm caused is based on the assertion that the images are “irretrievable and
may continue to be accessible on the internet in perpetuity—with the potential to
revictimize the complainant at some time in the future” (at para 17, emphasis added).
17 ese assertions, that oen come in the form of scare tactics aimed at dissuading consensual
youth sexting, fail to acknowledge that intimate images can only have this impact if they are
shared publicly online (rather than, for instance, shared via text messages among youths) and if
they are shared along with the individual’s name and in a way that results in search algorithms
prominently displaying the image.
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Nudes are Forever 137
Commenting on the inability to truly delete these photos, in R v CNT (2015) the
judge asserts that once an image is transmitted “its digital footprint is embedded
in binary cement” (at para 11). In Doe v ND (2016), the judge expresses concerns
that digital images are “out of the defendant’s (and the plainti’s—and the Courts)
control” and that there is no way to know how many times an intimate image is
“viewed or downloaded or if and how many times it may have been copied onto
other media storage devices (where it may remain) or recirculate” (at para 10).
Likewise, the judge in R v Schultz (2008)18 comments that “the moment Mr. Schultz
posted the photographs to his web page, he lost control of them and their ultimate
destination” (at para 119). As these cases demonstrate, digital images are widely
regarded within Canadian case law as dicult to control and delete and, therefore,
as possessing the potential for innitely lasting harm.
As is the case with conceptions of “just one click” and digital spread, concep-
tions of digital memory are also inuential in judicial reasonings and sentencing
decisions. In many cases, digital memory is explicitly described as an aggravating
factor in determining the appropriate response to digital forms of NCIID. One
judge states that an aggravating factor in the case is the fact that the transmitted image
will “forever have a potential for further transmission” (R v PSD 2016, para 13).
Likewise, in R v KF (2015), it is reasoned that “the image of AK is forever available.
Its distribution through the anonymity of the Internet is an aggravating feature
(at para 7). And in R v BH (2016) the judge nds that “the moral gravity of this
oence requires the imposition of a denunciatory sentence which will deter others
from such agrant breaches of privacy that have lifetime consequences. Neither
probation or a conditional sentence are appropriate in this matter, they do not
reect the proper principles of sentencing” (at para 27, emphasis added).
In Doe v ND (2016), the inuence of digital memory is taken to its extreme,
when the judge argues that digital memory not only extends the harm caused, but
is equivalent to multiple assaults: “[due to the] potential for the video still to be in
circulation, it is appropriate to regard this as tantamount to multiple assaults on
the plaintis dignity” (at para 57). ese kinds of responses aim to punish oend-
ers based not only on the harm caused but on the potential future harm that could
be incurred in light of digital memory. R v Agoston (2017) demonstrates that a lack
of perceived digital memory can likewise inuence case outcomes as the judge
holds that—because images were only shown to others on a cellphone rather than
distributed online—the oence “falls on the less serious end of the spectrum
because the images will not be available “forever” (at para 17). Mr. Agoston
received a sentence on the very low end of the spectrum for these cases, receiving
a conditional discharge and one year probation.
e above examples demonstrate that judicial understandings of digital mem-
ory have considerable eects on assessments of oender culpability and on ideas
of appropriate sentences in cases of NCIID. us, it is important to scrutinize how
judges may take up ideas about digital memory in ways that may not always get at
the nuances of digital and networked technology’s aordances (not to mention the
18 Received a sentence of twelve months’ incarceration followed by two years’ probation.
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138 Alexa Dodge
fact that non-digital photographs have the potential to be saved and redeployed in
the future as well). For instance, in the Agoston case, the images are seen as com-
pletely deleted from the cellphone and therefore as no longer a threat, but this does
not account for the ways our “promiscuous” (Calo 2015) devices tend to archive—
and sometimes leak—even those images we “delete.” On the other hand, common
assertions that a digital image will exist and be accessible “forever” may overstate
the potential future of an image in certain contexts, as images may eventually
disappear into the increasingly vast amount of digital data available online
(Hand 2016). e immortality of a digital image is oen at the mercy of algorith-
mic digital archives, and its persistence has the potential to become increasingly
irrelevant—resulting in its eective “disappearance” (Hand 2016). As Hand
describes, networked technology makes information “permanently accessible in
principle” but the reality is that some information remains “dormant” and is
vulnerable to “decay or deletion” (Hand 2016, 271). For instance, a nude image
non-consensually shared on a pornography site can quickly become like a drop
in the ocean of digital nudes. While the anxiety of being unaware of an images
future may persist, it is important to note that digital memory is not always as
functionally everlasting as it may feel (Karaian 2016; Hand 2016) and that the
particular future of an image will also be dependent on factors such as whether
it is able to be removed from search engine results. Regardless, it is clear that
various understandings of digital memory have signicant impacts on cases of
NCIID. While the increased harm of NCIID due to the aordances of digital
memory is oen treated as self-evident in both legal and governmental responses,
a more nuanced understanding of the role of digital technology demonstrates
the need to assess the impact of digital technology on a case-by-case basis.
In response to the infusion of digital technology into many cases of NCIID, I have
provided insight into the ways judges are grappling with the increasing need to con-
ceptualize digital technology and its various implications for law. My analysis nds
that the majority of judges see digital technology as having important impacts on the
nature and eects of NCIID. Judicial interpretations of digital technology are oen
used to argue that NCIID is now easier to commit—and therefore that sentences
must be harsh enough to deter others—and that the harm of NCIID has been ampli-
ed and extended—and therefore that this act requires serious civil and criminal law
responses. us, interpretations of digital technology have substantive impacts on
legal responses to NCIID. ese ndings demonstrate the need to better understand
the role played by digital/online technology in various cases of NCIID and the ways
this role is understood within law. While some scholars have expressed concern that
NCIID would not be taken seriously enough in law due to ideas about “cyber” forms
of harm as less “real” (Citron and Franks 2014; Powell and Henry 2017; Fairbairn
2015), Canadian legal interpretations have regularly reasoned that the harm of
NCIID is considerable and requires serious legal responses.
Recognition of the fact that these cases existed before digital technology is
helpful for teasing apart the impact of digital technology on experiences of and
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Nudes are Forever 139
responses to NCIID. What exactly is new about crime in the digital age—and how
this should aect the regulation of misconduct related to its use—remains a hotly
contested issue (Yar 2013; Calo 2015; Grabosky 2001). In this article I contribute
to existing eorts to map what is new about the crime of NCIID in the digital age
and complicate some of the assumptions about possible responses to this newness.
Calo (2015, 518) asserts that “an academic and policy-oriented community that
understands at the outset what challenges a technology poses stands a better
chance of fashioning a sensible theoretic, empirical, and (if indicated) regulatory
agenda.” is advice is equally pertinent for legal practitioners who may need to
take a step back from “common sense” assumptions about the eects of digital
technology to understand the nuances of its impact. While the aordances of scal-
ability, persistence, replicability, and searchability have had important impacts on
many cases of NCIID, social and legal responses to NCIID must make sure to
consider the specic role of digital technology on a case-by-case basis and to scru-
tinize common assumptions (and fears) about the impact of digital/online tech-
nology. As a result of the nuanced and variable inuence of digital technology in
these cases, policy makers and legal practitioners should be le with questions
regarding how their interpretations of digital technology may inuence their
understanding of and responses to cases of NCIID and to cases involving digital/
online technology more broadly. As digital technology is increasingly a factor in a
wider variety of civil and criminal cases (Yar 2013), it is necessary for policy mak-
ers and legal practitioners to possess a certain level of digital literacy. Additionally,
for those dedicated to challenging punitive responses to crime, it is necessary to
question the sentencing impacts of treating oences involving digital technology
as easier to commit and as creating unending harms. Legal interpretations of digi-
tal technology have implications not only for understandings of NCIID, but also
for other digitally related crimes that might be seen as easy-to-commit oences
resulting in harms without an expiry date.
Appendix: Methodology
Case law for this research was collected through three case law databases: CanLII,
WestlawNext Canada, and LexisNexis Quicklaw. Within each of these databases a
Boolean search was conducted for cases containing one or more of the following
search terms: nude photograph; nude picture; nude image; naked photograph;
naked picture; naked image; sexting; revenge porn; sex tape; intimate video; sexual
video; intimate image; 162.1. While 1,392 results were found, cases were selected
only if they involved all aspects of NCIID: Images had to be intimate in nature
(showing nudity, partial nudity, or explicit sexual acts) and they had to have actu-
ally been non-consensually distributed (cases were not included where the accused
only threatened the distribution of images). e selected search terms allowed for
cases to be found that pre-date the specic criminalization of NCIID in Canada
and the recent media and governmental attention to this issue.
In addition to this research being limited to English language cases only (due
to my lack of French language uency), an additional limitation of this methodol-
ogy is that not all cases are made available on legal databases (Best 2015). In order
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Alexa Dodge
Legal Studies
Carleton University, Ottawa, Ontario
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... 13 Pashang, S., et al. [54]. 14 15 This study used anonymised metadata associated with the 23,494,983 NCMEC reports related to suspected CSAI that were received from March, 1998 (when NCMEC's CyberTipline was created) until September 2017. NCMEC reports come from the US public and many US ESPs (electronic service providers) and over 9.6 million such reports (40%) occurred in the year 2017 (approximately one million per month) compared to the 565 000 reports (2.4%) in its first ten years of operation. ...
... 39 Livingstone, S. [38]. 40 Dodge, A. [14]. idea that 'affordances are not intrinsic properties that can be defined outside their situated context of usage, but ongoing enactments by specific users that may vary across space and time' (p3653). ...
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European law has recognised the need for international cross-disciplinary collaboration to both identify, locate and safeguard victims and prevent, investigate and prosecute online child exploitation and abuse (OCSEA). However, there is evidence that these crimes are continuing to increase and develop in step with technological advances. Changing the behaviour of both perpetrators and victims is both challenging and expensive and there is little evidence of what works to reduce these crimes. In this paper an argument is presented that changing the environments which support OCSEA is necessary if we are to detect and manage these crimes, and more importantly prevent them.
... Online harassment, a cyber-enabled crime, refers to behaviors aimed at annoying, abusing, and tormenting people in cyberspace [6]. Online harassment appears to be composed of unique features [7]: widespread reach (i.e., the content is watched by many individuals), the permanence of the internet (i.e., the content is more difficult to remove, affecting victims at any time), and anonymity (i.e., the bullies are often unknown to victims) [4,[8][9][10][11][12][13]. These features are linked to several adverse consequences for victims at the psychological (e.g., powerlessness, shame, fear, anxiety, depression symptoms), social, and economic (e.g., disruption of relationships and loss of work) levels [14,15]. ...
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... For doxxing victims, the release of de-anonymising, de-obscuring or delegitimising information creates a spectre of future harm-a spectre doxxing shares with other information-transmitted harms, including the non-consensual sharing of sexual images (Dodge 2019;McGlynn, Rackley and Houghton 2017). In this respect, doxxing may follow the following 'life cycle': (1) the impetus of initiating harm where previously private PII is publicly disclosed; (2) the reception of this publicly disclosed PII by other actors, who may use the newly disclosed information to enact harms upon the victim; and (3) the diffusion of the PII breach, which may invite further harms or breaches against the victim. ...
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... Once disseminated, the intimate material will most likely exist forever in digital memory, exposing victims to permanent reputational and social harm and ongoing victimization (Dodge, 2019). Victims suffer from serious mental and physical consequences, similar to those seen in conventional sexual offenses, including depression, profound fears and anxiety, post-traumatic stress disorder, and overuse of drugs and alcohol as means of coping. ...
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Non-consensual dissemination of intimate images (NCII) is a major concern in many countries. The increase in the number of NCII cases and awareness of its adverse effects on victims has raised public awareness, with many states enacting legal and non-legal measures to combat this new type of violence. Yet, despite recent legislation, there is a reason to suspect that the majority of NCII cases remain unreported. Thus, research is needed on law enforcement perceptions of victims and identification of victim-blaming attitudes and factors that might affect legal decision-making. The present study addressed this issue by focusing on Israeli police officer perceptions of NCII victims and offenders: 145 police officers and 160 students, who served as a control group, were presented with a scenario depicting an NCII offense in which the stolen intimate material was either self-generated by the victim (selfies) or stealth-taken by the victim’s ex-boyfriend. In both cases, the stolen images were disseminated by the ex-boyfriend without the victim’s permission. The findings indicated victim-blaming attitudes toward NCII victims within law enforcement as well as an effect of the source of stolen images. Although officers perceived NCII as criminal and the offender as highly culpable and punishable, they engaged in victim-blaming. This was especially the case for the self-taken scenario, which elicited negative feelings and less empathy toward the victim. The relevance of emotions in legal contexts is emphasized in light of their contribution to the participants’ punitive judgments. Victim-blaming in NCII offenses and its implications are discussed, and suggestions are made for how to reduce negative and victim-blaming attitudes among law enforcement.
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The use of images of persons in a pornographic context (without the prior consent of the person concerned) on the internet is an increasingly widespread infringement. Unlawful activities carried out with the use of generated images and artificial intelligence are a variant of this phenomenon. “Revenge porn” and “deepfake porn” illustrate the inadequacy of legal systems vis a vis the fast-changing reality. Using the comparative law method, a comparison was made between the current laws of nine EU Member States to create a map of protection for victims of revenge porn. As the results showed, in three of the studied countries there is a separate incrimination of revenge porn; however, the conceptual scope of its definition is significantly different and it is these differences that determine the legal way for the victims to assert their rights. This article is a comparison of the current legal regulations of selected European Union countries and the means of legal protection used by the victims. The text presents the differences occurring in the legal systems adopted in the countries subject to analysis, as well as an assessment of possible solutions at the legal and technological level to face the existing problem.
In this chapter, we explore how the digital age has impacted upon how dominant discourses of psychological trauma are constructed, maintained, and challenged, in a world which is becoming increasingly globalised. Through digital technologies such as social media, huge numbers of people globally can now be exposed to potentially traumatic audio-visual online content, at times with limited awareness or choice concerning the material they are accessing. We discuss the implications of this resultant globalisation of trauma, including questioning whether technology could potentially be contributing to a discourse around normalising trauma. We explore the responsibility of both the media and individuals who use technology to record and disseminate traumatic material.
This article examines some of the complexities and tensions which lie at the intersection of popular and official constructions of technology-assisted sexual violence (TA-SV). It argues that many of the core contextual understandings of victimhood and harm which underpin the cultural and legal framing of offline forms of sexual violence are not only reproduced but augmented in virtual settings. Drawing on debates from critical victimology, the article argues that TA-SV amplifies traditional understandings of ‘victim’ and ‘offender’ behaviours concerning sexual crime. In so doing, it highlights the particular challenges around: a) the ‘ideal victim’; (b) responsibilisation and blame; and c) victim-offender-bystander continuums which emerge not only within discourses on TA-SV, but also through the use of digital evidence at trial. The article concludes by examining the broader implications for academic discourses on victimhood and the challenges for legal and cultural discourses in responding to sexual violence in the digital age.
In September 2019, The New York Times reported that in the previous year, technology companies reported to the US National Center for Missing & Exploited Children (NCMEC) over 45 million photographs and videos of children being sexually abused, which was more than double what had been reported in the previous year (Keller & Dance, 2019). This hard-hitting article made reference to a paper completed in collaboration with NCMEC which stated that ‘… online sharing platforms have accelerated the pace of CSAI [child sexual abuse image] content creation and distribution to a breaking point where NCMEC’s manual review capabilities and law enforcement investigations no longer scale’ (Bursztein et al., 2019 p. 1). While meaningful estimates of these crimes are highly problematic, Wager et al. (2018) have argued that there are essentially four ways in which online-facilitated child sexual abuse (OCSA) can be measured: by counting the number of offences committed, the number of perpetrators, the number of victims and the number of images that have been viewed, downloaded and exchanged. However, they note that quantification based on each of these four measures inevitably produces very different figures, partly because they are attempting to count different aspects of OCSA. For example, disaggregated police data in Scotland would indicate that the number and proportion of police-recorded ‘other sexual crimes’ in Scotland which were cyber-enabled (the internet used as a means to commit the crime) had increased significantly over 2 years. In 2016/2017, 51% of ‘other sexual crimes’ were cyber-enabled, up from 38% in 2013/2014. However, a meta-analysis of the prevalence of online solicitation amongst youth (one specific form of OCSA) would indicate that one in nine young people experiences online solicitation but that moderator analyses indicated that prevalence rates had decreased over time (Madigan et al., 2018).
The purpose of this qualitative study was to explore consequences of the nonconsensual dissemination of sexually explicit media (NCDSEM) for survivors, with an emphasis on how NCDSEM may impact social relationships and social anxiety. One-on-one telephone interviews with (N = 17) self-identified survivors of NCDSEM were conducted between May and December 2019. Interviews were analyzed using a flexible coding methodology. There were five main ways in which participants described consequences of NCDSEM: (a) fear of going out in public, (b) fear of engaging in relationships, (c) fear of applying to jobs, (d) fear of seeking help, and (e) influencing depression and feelings of anxiety. These findings suggest that, for some people, NCDSEM victimization may influence whether and how they subsequently socialize with other people.
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Popular and scholarly responses to nonconsensual pornography (colloquially known as ‘revenge porn’) have largely, though not exclusively, focused on cases that fit within the paradigmatic mold of men nonconsensually distributing intimate images with the intention to harass or abuse their female partners/ex-partners. However, several recent studies offer evidence that the dynamics of this act are more diverse than previously assumed. In this article I analyze 49 Canadian legal cases to determine the extent to which those cases that make it to the court level fit within the typical framing and to explore the dynamics of cases laying outside this paradigm. I find that, while a large portion of cases fit the commonly imagined pattern, the case law also includes several cases that complicate dominant framings of nonconsensual pornography. Using intersectional and postmodern feminist theory, I argue that this variety of case contexts necessitates more diverse socio-legal understandings of and responses to nonconsensual pornography.
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Due to child pornography laws, non-consensual intimate image sharing among youth is subjected to complex legal landscapes in a variety of jurisdictions such as Canada, the United States, the United Kingdom, and Australia. While a growing number of scholars have problematized the use of child pornography charges to respond to these cases, there remains little understanding regarding how the police that enforce these laws conceptualize this issue and how this influences responses to these cases. Drawing from interviews with members of sex crime–related units in police service organizations from across Canada, this article examines how police conceptions of non-consensual intimate image sharing among youth correspond with and/or diverge from legal and critical understandings of this issue. While it is widely understood that online and digitally enabled forms of sexual violence pose unique challenges for police, our research fills a gap in the literature by examining how police themselves understand and respond to these challenges.
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This paper explores how the photo and video-sharing app Snapchat mediates memory and intimacy, using focus group data with 18-year-olds. We use Bergson’s ideas about duration and Deleuze and Guattari’s theories of affect and assemblages to think about how the digital affordances of ‘disappearing’ Snapchat technology reshape memory and intimacy in youth sexual and relationship cultures. Our findings illustrate that Snapchat offers a temporal fastness and ephemerality – but also forms of fixity through the screenshotting of ‘disappearing’ snaps. Because judgement from peers cannot take place publicly within the app, offline discussion of Snapchat activity gains significant traction, making interview accounts of Snapchat use highly relevant. Our analysis of discussions of ‘Snapchat memory’ explores the gendered aspects of performative ‘showing off’ and sexual scrutiny, considering what happens when snaps do not disappear and how Snap exchanges can be used as relationship currency; for instance exploring how some participant’s challenged Snapchat related slut shaming through their uses of humour. Overall we show how Snapchat is mediating youth intimacy, highlighting the reconditioning that occurs between and across the digital world of Snapchat and the physical world of its youth users – evidence of the blurring of online and offline experiences that disrupts digital dualisms.
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Revenge porn involves publicly releasing pictures of a person’s sexual activity, along with the means to contact that person, to provoke widespread shaming. This paper analyzes the US-based revenge porn website through discourse, legal, and information network analyses. The paper explores how revenge porn is not only an instance of online sexual violence rooted in abjection but also symptomatic of a new political economy of subjectivity, where both the human-based and the automated, algorithm-based circulation of personal information are at the center of processes through which the self is seen and valued, both socially and economically, by others.
This book examines how digital communications technologies have transformed modern societies, with profound effects both for everyday life, and for everyday crimes. Sexual violence, which is recognized globally as a significant human rights problem, has likewise changed in the digital age. Through an investigation into our increasingly and ever-normalised digital lives, this study analyses the rise of technology-facilitated sexual assault, ‘revenge pornography’, online sexual harassment and gender-based hate speech. Drawing on ground-breaking research into the nature and extent of technology-facilitated forms of sexual violence and harassment, the authors explore the reach of these harms, the experiences of victims, the views of service providers and law enforcement bodies, as well as the implications for law, justice and resistance. Sexual Violence in a Digital Age is compelling reading for scholars, activists, and policymakers who seek to understand how technology is implicated in sexual violence, and what needs to be done to address sexual violence in a digital age.
Photographic practices and photo-sharing have become pervasive routine communicative acts in everyday life. Photo-sharing can be beneficial for maintaining and strengthening social relationships, but it also requires a careful reflections of trustful disclosure, intimacy, privacy and vulnerability. Several scholars have found that conflicts regarding photo-sharing arise when assumptions regarding the “shareability” of pictures and an “appropriate” amount of photo-sharing differ. This demands for further insights into which practices are considered appropriate or inappropriate and for which reasons. The present study explores norms and rules of taking and sharing pictures and examines how these norms are defined in close relationships, more precisely in romantic partnerships and friendships. It is based on 34 repertoire-oriented, semi-structured interviews that are combined with creative visual methods. The analysis shows that trust, confidentiality and consent are the fundamental conditions for photo-sharing in close relationships. However, when it comes to negative causes and consequences of photo-sharing, trust and confidentiality are at the same time considered as unreliable and fragile constructs. Usually, the image-makers are held responsible for unintended sharing and re-sharing. Further responsibility is ascribed to invisible agents and insecure technological structures, while other involved persons are not described as accountable agents. This implies that the fragility of trust in relationships needs to be anticipated in sharing processes. We argue that this necessitates further critical discussions of responsibilities, agency and trust in order to sustain the value and importance of close relationships in current digitally networked societies.
In 2014, the Court of Justice of the European Union (CJEU) established the ‘Right to be Forgotten’ (RtbF). Since its establishment, more than 500,000 people filed requests with Google to be ‘de-listed’ from its search. At the same time, the Court’s decision has stirred debates focused on the tension the decision raised between a person’s right to privacy and freedom of expression. This study offers, yet, a different reading of the decision and its meaning. It first outlines the theoretical foundations of the concept of memory and its relation to rights. Then, it focuses on media, memory, and the RtbF. Afterward, the study discusses the legal origins of the RtbF and claims that the right is actually a right to construct one’s narrative. Therefore, in order to analyze the RtbF, this study places it within memory studies and analyzes it through its tools. From this perspective, this study criticizes the emphasis placed on forgetting in the definition of the right and problematizes its focus on individuals. Eventually, this study uses the legitimization the RtbF gives to a new discourse about memory in relation to rights in order to suggest an extended ‘right to memory’ that will answer the memory needs of our time.
This study examines the emotional and mental health effects revenge porn has on female survivors. To date, no other academic studies have exclusively focused on mental health effects in revenge porn cases. In-depth qualitative interviews were conducted between February 2014 and January 2015 with 18 female revenge porn survivors, and inductive analysis revealed participants’ experiences of trust issues, posttraumatic stress disorder (PTSD), anxiety, depression, suicidal thoughts, and several other mental health effects. These findings reveal the seriousness of revenge porn, the devastating impacts it has on survivors’ mental health, and similarities between revenge porn and sexual assault.
Privacy advocates often like to claim that all modern societies feel the same intuitive need to protect privacy. Yet it is clear that intuitive sensibilities about privacy differ from society to society, even as between the closely kindred societies of the United States and continental Europe. Some of the differences involve questions Of everyday behavior, such as whether or not one may appear nude in public. But many involve the law. In fact, we are in the midst of major legal conflicts between the countries on either side of. the Atlantic-conflicts over questions like the protection of consumer data, the use of discovery in civil procedure, the public exposure of criminal offenders, and more. Clearly the idea that there are universal human sensibilities about privacy, which ought to serve as the basis of a universal law of privacy, cannot be right. This Article explores these conflicts, trying to show that European privacy norms are founded on French and German ideas of "personal honor." Continental "privacy," like continental sexual harassment law, prison law, and many other bodies of law, aims to protect the "personal honor" of ordinary French and German folk. American law takes a very different approach, protecting primarily a liberty interest. The Article traces the roots of French and German attitudes over the last couple of centuries, highlighting the French experience of sexual license in the nineteenth century and the German experience of Nazism. The Article then discusses the current state of French and German law with regard to matters such as consumer credit reporting, public nudity, and the law of baby names. It contrasts continental approaches to what we find in American law. Throughout, the Article argues, American law shows a far greater sensitivity to intrusions on the part of the state, while continental law shows a far greater sensitivity to the protection of one's public face. These are not differences that we can understand unless we abandon the approach taken by most privacy advocates, since such differences have little to do with the supposedly universal intuitive needs of "personhood." Instead, they are differences that reflect the contrasting political and social ideals of American and continental law. Indeed, we should broadly reject intuitionism in our legal scholarship, focusing instead on social and political ideals.