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Facebook has to identify uploader of revenge porn, says Dutch court

25 Jun , 2015  | by:

A Dutch Court today ruled that Facebook has a duty to identify a person who has uploaded revenge porn video on its social network. In this case, the video displays a woman, Chantal, performing oral sex on her now ex-boyfriend. A fake account bearing Chantal’s name was created and used to share the private video with her friends and others. Chantal’s ex-boyfriend, who recorded the video, has always denied uploading the video. Although Facebook removed the video within one hour, the video had already found its way online and is still being shared. Chantal went to court and claimed release of information identifying of the person who created the fake account and uploaded the video.

The type of nonconsensual pornography Chantal was confronted with is commonly referred to as ‘revenge porn’ since it is often posted online by ex-partners. Unlike in Japan or England, there are no specific legal rules regarding revenge porn in the Netherlands. In December 2014, former Minister of Security and Justice Ivo Opstelten, argued that there is no lacuna in Dutch criminal law when nonconsensual pornography is concerned. According to the Minister, provisions in Dutch criminal law on insult and defamation can be used to prosecute revenge porn. Also the current Minister of Security and Justice, Ard van der Steur, believes that the current legal regime suffices to combat revenge porn. Meanwhile, the Dutch police seems to prioritize cases of revenge porn where these are combined with elements of stalking or extortion, leaving ‘ordinary’ cases of revenge porn relatively uninvestigated.

A TV report by crime reporter Peter R. de Vries on Chantal’s case has shown a somewhat lax attitude of the police towards her case. Chantal reported the crime to the Dutch police one day after the video was published on Facebook. The police have requested information about the fake-account from Facebook, but has done so only after the 90-day period during which Facebook may still store information about a deleted account. Facebook had thus already deleted the information about the account, leaving both the police and Chantal with little hope of finding the person who uploaded the revenge porn.

As a civil law procedure seemed the only option left, Chantal started a case against Facebook to uncover the identity of the perpetrator. The Lower Court of Amsterdam today ruled against Facebook. According to the Court, Facebook acted unlawfully by not releasing the information. A duty to release such information exists if someone can only stop unlawful actions of another through the release of personal data by the provider. Although Facebook argued that it no longer possesses the requested information, the Court has doubts whether that actually is the case. The Court therefore orders Facebook to release any information relating to the owner of the fake account. In case Facebook is unable to release such information, the company should allow an independent third-party to investigate whether Facebook had or still has the information, and what that information entailed or entails.

A huge victory for Chantal and other victims of revenge porn.

 


 

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