Do we need new laws to address non-consensual circulation of intimate images: the case of Brazil

Image source:Poster from InternetLab, Gender and other social markers.

The circulation of Non-Consensual Intimate Images [NCII], also known by the “defective” term revenge porn, is defined as the act of disseminating intimate images of a person without their consent, regardless of whether they had consented to the making of the image. There is growing traction throughout the world that there needs to be legislation regarding NCII. A recent research published by InternetLab shows that at least 11 countries already have specific laws in place to respond to the problem, and at least 9 others are discussing specific bills. NCII was possible before the Internet was there, but it is the development of the digital technology that made it an issue of concern. Technically anyone can be the victim of NCII, but observation and research prove it to be a gendered form of violence: due to gender norms, it either victimizes women mostly or consequences are more severely felt by women.

There is growing traction throughout the world that there needs to be legislation regarding NCII. A recent research published by InternetLab shows that at least 11 countries already have specific laws in place to respond to the problem, and at least 9 others are discussing specific bills.

NCII is clearly an instance where the paradoxical relations between gender, sexuality, and violence become apparent. In a country like Brazil, women are urged to exercise their sexuality and sometimes women do benefit from this freedom, but eventually end up being punished for doing so. The paradox is a painful encounter between liberalization of habits, and the persistent taboo involving women’s nudity or their involvement in sex, which has the power to destroy their lives. Women are then punished for their expression of their sexuality because they have violated gender norms or dominant representations of identity and sexuality. ¹. Violence, or the threat of violence, is an effective form of social control: it acts more as maintenance of the order than as its breach. ²

Women are then punished for their expression of their sexuality because they have violated gender norms or dominant representations of identity and sexuality. Violence, or the threat of violence, is an effective form of social control: it acts more as maintenance of the order than as its breach.

Between 2014 and 2016, I coordinated a research effort at InternetLab to understand the development of NCII cases in Brazil, assess legal responses, and point to legislative or policy gaps.³ Our take was that methods had to be found to provide grounded insight into what NCII means to a girl’s or woman’s life in this country, and whether solutions being proposed addressed their different realities in our immensely unequal society. The main result of this effort is the open access book The Body is the Code [Portuguese], which we have been ever since using as material for workshops, lectures, and the development of opinion pieces in the media or position papers for bills under discussion.



O CORPO É O CÓDIGO by InternetLab

At the end of 2013 in particular NCII got a lot of public attention, when two adolescents committed suicide after having been victimized by non-consensual sharing of images by their ex-boyfriends, and this incident was widely reported on.⁴ In many countries NCII becomes a concern after individual cases of horrific consequences are picked up by the media.⁵ Our fieldwork reveals, however, a problem that goes far beyond a few exceptional cases: countless reports of suicide, depression, isolation from social contact, school dropouts, unemployment, aggression, and harassment on the streets, all resulting from the dissemination of NCII.

In many countries NCII becomes a concern after individual cases of horrific consequences are picked up by the media. Our fieldwork reveals, however, a problem that goes far beyond a few exceptional cases: countless reports of suicide, depression, isolation from social contact, school dropouts, unemployment, aggression, and harassment on the streets, all resulting from the dissemination of NCII.

The prevalent discourse in most of these instances is that victims had no laws to resort to.⁶ We were suspicious of that argument, and tested it through analyzing all 90 decisions on the subject in the São Paulo Court of Appeals, the largest in the country, revolving around criminal law, criminal procedure, and the civil liability of individuals and online service providers, as well as the solutions proposed by Congress and by governments. To understand cases that didn’t and wouldn’t reach the judiciary, we conducted 15 in-depth interviews with stakeholders of the justice system, and a case study that took into account specifics regarding age, class, territory and context in the periphery of São Paulo on the development of a practice of shaming schoolgirls called the “TOP 10”.⁷ The practice reminds us that there are just no easy solutions, and that intersectionality is the only way to go to face issues of violence against women. The conclusions of our study are far more complex than showing that there is an absence of legal solutions.

The practice reminds us that there are just no easy solutions, and that intersectionality is the only way to go to face issues of violence against women.

Firstly, that prosecuting NCII means both prosecuting individuals and online service providers, and it is only in the first case that no specific legislation has yet been approved in Brazil, and even there a general legal framework is being enforced both in terms of criminal and of civil law.⁸ Also, by qualitatively analysing all the 90 cases underlying the judicial decisions, it became clear that the universe of violence around NCII is far wider than the dissemination of intimate images. The majority of lawsuits were related to threats, extortion, and even rape and violence committed by means of the possession of intimate images of women. And lastly, due to differences in material and procedural law, NCII involving adolescents receives a completely different treatment, but one that, contrary to what one would imagine, ends up being less protective of adolescents and their best interests.

Punishing the aggressor: representations, procedure, recognition

When the victim is younger than eighteen, the criminal case is governed by the Child and Adolescent Statute (Law 8.069/90) - a law that covers different subjects connected to the development of children and adolescents. In relation to this population, NCII is prosecuted through child pornography laws (241-B) that criminalizes even the mere possession of pornographic or explicit sex scenes, which are defined narrowly (241-E) as “explicit sexual activities, real or simulated, or exposure of genital organs of a child or adolescent for primarily sexual purposes.”

Half of the criminal cases we had at hand referred to this population and therefore to child pornography, but contrary to what we would expect, the rate of condemnations (or successful prosecution) is far lower than that of adult victims. The reason is, firstly, that pornography is so narrowly defined that several images that fall within the scope of NCII are excluded from the enforcement of the law. So the perpetrator cannot be punished, even if it is obvious that NCII is also violence and has caused suffering to the victim. Secondly, often aggressors will be absolved under the argument that they did not and could not know that the victim was under eighteen. Beyond the legal argument, our general impression is that magistrates are wary of punishing NCII as child pornography, which is a very severe and stigmatised crime, and raises the imaginary figure of the pedophile - a monstrous construction who in nothing would resemble the one who disseminated images of a nude adolescent. Therefore, half of our cases involving girls under eighteen were left unpunished, even if evidences of the act were in place.

Half of the criminal cases we had at hand referred to this population and therefore to child pornography, but contrary to what we would expect, the rate of condemnations (or successful prosecution) is far lower than that of adult victims.

Complexities involving prosecuting NCII against adults are of a different nature. Condemnations are the rule when the case involves threat, extortion or rape. But in other instances when the crime is only of dissemination, this often did not lead to any severe consequences for the perpetrator. The reason is firstly procedural law. Brazilian law differentiates between crimes of private criminal procedure and crimes of public criminal procedure. The victim pursues a case in private criminal procedure, from making a complaint, prosecution, and every step of the process, and of course all this with the assistance of a lawyer. Also, the victim must file the suit within six months of becoming aware of the identity of the aggressor. Crimes of public criminal procedure, on the other hand, are processed by the Public Attorney’s Office, which brings the lawsuit and thereafter pursues each step of the procedure, and these are governed only by the regular criminal law prescription rules (that allow for far longer periods for making a complaint).

The designation of offences under each procedure is to be drawn directly from the legal text, and is based on an understanding that some crimes are closer to the intimate sphere of the victim, while others are of primary interest to society as a whole, and should therefore be prosecuted by the state. NCII against adults is prosecuted, in the absence of a specific legislation, as slander and defamation, which are crimes of private criminal procedure. All the other crimes we mentioned so far (child pornography, threat, extortion and rape), on the contrary, are crimes of public criminal procedure.

NCII against adults is prosecuted, in the absence of a specific legislation, as slander and defamation, which are crimes of private criminal procedure. All the other crimes we mentioned so far (child pornography, threat, extortion and rape), on the contrary, are crimes of public criminal procedure.

The reason why so few cases of effective dissemination of intimate images reach the judiciary in terms of criminal prosecution, and that, when they do, they often fail, is precisely the result of this private procedure. Brazil’s outrageous inequality means that most women would never have the resources to hire a lawyer, and the public system of defenders which should be in place when poverty is proved has not been able to absorb this demand.⁹ Strict documentation and deadline requirements are also a hindering factor.

NCII cases can also be prosecuted in the civil sphere, usually in the form of a lawsuit against the aggressor with the purpose of compensation for material and moral damages (articles 186 and 927 of the Civil Code). Those cases usually lead to compensation; however, the extent of the damage is measured against criteria that reinforce sexism and hierarchisation of women. Judges will often provide for relatively low compensation, but somewhat higher if a woman is qualified as having an “important role in society”, for instance lawyers and academics have been granted higher sums.

One last observation is that our legal framework for protecting women against domestic violence, the internationally renowned “Maria da Penha Law” (Law n. 11.340/2006),¹⁰ has hardly ever been invoked in the lawsuits. The Maria da Penha Law is applicable when physical, psychological or economic violence occurs in any intimate relation, regardless of cohabitation, and it does not establish new criminal offences, but provides additional legal safeguards and protective measures in cases of domestic violence against a woman. It’s surprising that justice system stakeholders – lawyers, prosecutors, public defenders, judges – haven’t been pushing for the enforcement of this law in cases of NCII.¹¹ Such enforcement has been a matter of our advocacy, since it does not require legal reform, but simple interpretation of existing law and the recognition that online violence is violence like any other.

Calling providers to action, and the Marco Civil da Internet

Victims can bring lawsuits against companies that provide procedures for taking down content, identifying the aggressor, and obtaining compensation from the providers themselves. The issue of intermediary liability for damages caused by third-party content is a sensitive one for those of us who are also digital rights defenders. Everywhere in the world, issues involving pornography, and especially child pornography and other sexual violations on the internet, have always been side-by-side with propositions on internet regulation that would call for censorship and internet control in a wider sense.¹² It has been a firm pillar of the digital rights community that expanding online service provider [OSP] liability can be damaging to freedom of expression online, since it could lead to abuse in reporting of infringing content and therefore to overblocking.

Everywhere in the world, issues involving pornography, and especially child pornography and other sexual violations on the internet, have always been side-by-side with propositions on internet regulation that would call for censorship and internet control in a wider sense. It has been a firm pillar of the digital rights community that expanding online service provider [OSP] liability can be damaging to freedom of expression online, since it could lead to abuse in reporting of infringing content and therefore to overblocking.

Establishing safe harbors for intermediary liability was one of the substantial demands of civil society when our Internet Civil Rights Framework [Marco Civil da Internet, or Marco Civil] was being drafted, from 2007 to 2014. However, no dialogue was then established with the feminist activists, LGBT and child and adolescent protection communities.¹³ After the debates in the public consultations, it became clear that the liability framework would be the “judicial safe harbor” exempting OSPs of liability until the moment they receive a judicial order for the removal of content, from when they can be held liable for non-compliance. It was a victory for internet companies and the activists for digital rights: a judge should be the proper authority to determine if content is infringing and to order its removal (and not the company).

The Brazilian intermediary liability rule contains two exceptions: the first, is about the exclusion of copyrighted content due to lack of consensus on the subject.¹⁴ The second relates to what we are discussing here: in the final stage of the progress of the bill in Congress was when the widely publicized suicide of two teenagers took place. Their intimate videos had been disseminated on the internet and this sensitized the bill rapporteur, who included a provision stating that OSP liability for NCII content would apply after a private notice by the victim.¹⁵

Such a rule means that Brazil has a regime of intermediary liability specific for the case of NCII, with the declared intention of providing platforms with incentives for removing this kind of content as quickly as possible, as long as a specific hyperlink is provided. While the long-term effects of the rule are still unfolding, we gathered evidence that it has had major effects on the readiness of platforms to remove such content upon victim notification (this provision is limited to those companies that are headquartered in Brazil and can therefore be easily reached by our justice system, which is the case for Google, Facebook and Twitter). We had feared that this notification system would be abused by the morality police or those against nudity, but this has not happened. Also, a tangential consequence was the push for self-regulation on the side of platforms, which, under the pressure of worldwide regulation, started to provide for specific forms for taking down NCII.

Such a rule means that Brazil has a regime of intermediary liability specific for the case of NCII, with the declared intention of providing platforms with incentives for removing this kind of content as quickly as possible, as long as a specific hyperlink is provided.

This process provided us with an important learning on the intersection of digital rights and women’s rights. Censorship affects us women in particular, as it does to subaltern populations in general. This does not mean we must face certain policy options as a dogma, such as pushing intermediary liability away as much as possible in absolutely all cases. Our experience proved that a well-drafted law, scrutinized by civil society groups, was able to provide adequate protection for both our freedom of expression and our bodily autonomy.

Legislating for NCII

The Brazilian Congress has been drafting bills on NCII since 2013, when 5 proposals were presented before the House of Representatives. As of this writing, 14 bills have been proposed in Congress, 13 of them at the House, and one at the Senate,¹⁶ revolving around creating specific criminal types and altering the Maria da Penha Law. They all converge in the diagnosis that NCII generally victimizes women, in intimate or domestic relations, and in the strategy of strengthening criminal penalties. In 2015, the House draft bills were attached to a sole proposition (draft bill 5555/2013), which was the object of public discussion in different occasions. Our research team intervened twice,¹⁷ based on two concerns: first, the idea that strengthening punishment without aiming at prevention is not only incomplete, but also that it disregards how criminal law is enforced selectively in a country like Brazil,¹⁸ and in the end is used to reinforce inequalities.¹⁹ Second, that even if taken in isolation, measures that raise penalties but do not structurally deal with unequal access to justice provide absolutely no change to the current situation: the one and sole important change would be that NCII invokes a public procedure lawsuit instead of a private one, so that the solution is available to all Brazilian women, and not just those who are economically privileged. When approved at the House in a surprising move, such concern was not taken into account. In the Senate, the bill was however reformed and incorporated these views, and it currently is in the House, waiting for revision.

Our research team intervened twice, based on two concerns: first, the idea that strengthening punishment without aiming at prevention is not only incomplete, but also that it disregards how criminal law is enforced selectively in a country like Brazil, and in the end is used to reinforce inequalities. Second, that even if taken in isolation, measures that raise penalties but do not structurally deal with unequal access to justice provide absolutely no change to the current situation: the one and sole important change would be that NCII invokes a public procedure lawsuit instead of a private one, so that the solution is available to all Brazilian women, and not just those who are economically privileged.

Our study points to the inadequacy of the existing understanding that there is a lack of legal solutions for NCII. There are legal solutions existing, but we were able to identify important barriers and obstacles that are present in the law enforcement layer. Those barriers also inevitably relate to Brazil’s economic and social inequalities. Lawmaking that aims at presenting response to social demands without taking reality sensibly into account is irresponsible. Also, as much as we try to understand legislation as the final mile in solving a social problem, legal interpretation plays a far greater role, and it is clearly a sphere in which stereotypes and cultural understandings of gender norms also determine outcomes.

Reforming the law is essential, and can produce important results as our experience with the Marco Civil da Internet law establishes. However, to understand and effectively intervene in legal processes we must closely follow judicial activity and interpretation as well.

Lawmaking that aims at presenting response to social demands without taking reality sensibly into account is irresponsible. Also, as much as we try to understand legislation as the final mile in solving a social problem, legal interpretation plays a far greater role, and it is clearly a sphere in which stereotypes and cultural understandings of gender norms also determine outcomes.