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01 Aug 2018

Protecting the Anonymity of Victims of Sexual Violence in the Internet Age

Victims of certain sexual offences, including rape, are granted lifelong anonymity by section 1 of the Sexual Offences (Amendment) Act 1992. However, this almost 30-year-old statute is straining under the weight of new technologies, the use of which was not envisaged by legislators three decades ago. Whilst amendments have been made to the Act, it still struggles to provide appropriate protections to individuals who are victims of sexual violence.

On 18 June 2018, a woman in Liverpool was convicted of two counts of publishing the names of victims of a sexual offence. Earlier in the same month there was controversy when it was discovered that Google’s auto-complete function was identifying the victims of sexual violence when people searched for the names of their attackers. Another high-profile example of victims being identified emerged from the rape trial of Ched Evans several years ago, when the name of the woman who had made the accusations against Mr Evans was published on Twitter, and further disseminated by re-tweets. Nine people were arrested and charged with naming the woman. However, that did not prevent news sites abroad from hosting the information, where it remains to this day, and from where it can still be accessed by the British public.

The law as it stands was designed in a world where the only platforms for dissemination of information were newspapers, radio and television, all of which required a publisher or editor who was responsible for their content. All of these platforms had, at the time the statute was drafted, individuals who were based in the UK in the course of their business, and who therefore had an interest in complying with privacy laws.

Nowadays, by contrast, nearly every person in the world has access to the internet. Internet Service Providers and Web Hosting services are not legally liable for the content they host or allow access to, provided they have not curated or been involved in the editing of it. This is enshrined in Directive 2000/31/EC of the European Parliament, which was brought into force in the UK on 21 August 2002. Many websites have no equivalent to a publisher or editor who exercises overall responsibility for its content. This makes it much harder to 1) identify individuals who name victims of sexual violence, and 2) remove the identifying information once it has been disseminated. Newspapers have limited circulation, and radio and television broadcasts can be stopped, but once something is put on the internet, it is generally there forever. An individual can therefore use the internet to cause lasting damage by naming a victim of sexual violence, whilst at the same time safeguarding his or her anonymity.

As the law currently stands, ISPs and Web Hosting services are not obliged to prevent access to information identifying those who claim to be victims of sexual violence.  ISPs are, generally speaking, resistant to censoring the internet, short of being made to do so by a mandatory court order under section 29 of the Senior Courts Act 1981 (or if there are concerns about preventing child sexual abuse, for which there are mechanisms to remove access to sites based upon the work of the Internet Watch Foundation). The majority of the case law relating to such orders is in relation to copyright and trademark infringement; these cases make it clear that the cost of maintaining the restrictions is significant. There is therefore no clear legal route to forcing UK based websites into removing material that identifies the adult victims of sexual violence.

This issue is even more problematic when the website hosting the information is based entirely outside the UK, as there is nothing a UK Court could do to have that harmful information removed. The best currently available option for a victim of such a publication would be to request a block from ISPs, but there is no mechanism for forcing the ISPs to comply with such a request. A mandatory court order could be obtained to require UK-based ISPs to block the website, but that is unlikely to be comforting to an individual whose name can still be accessed overseas.

The government is currently drafting a White Paper, following recent consultations on a Green Paper regarding the much touted ‘Digital Charter’, the aims of which are to make the UK the safest place in the world to be on the internet. The Green Paper addressed the issue of web-based crime on a large scale, and set out several plans aimed at preventing the harmful uses of the internet in the UK, including the issue of where liability for the content of webpages lies.

In this Green Paper, the work of the Internet Watch Foundation was one of the aspects of the current system of internet monitoring that was praised. The IWF is a voluntary organisation that works to identify websites hosting child sexual abuse, reports them to the police and associated organisations outside of the UK, and send lists of identified websites to ISPs who then block these websites. This voluntary blocking process is much more cost effective than engaging with the court system. A potential way of addressing the prevalence of victims of sexual violence being identified online, and thus reducing the harm caused by this offence, would be to afford adult victims of sexual violence the same treatment, and establish a system where websites that have identified victims of sexual violence can be reported and voluntarily blocked by ISPs.

Where this system would struggle would be in international coordination. Unlike child sexual abuse which is universally reviled, the identification of adult victims of sexual abuse is not something that all countries view as being problematic. Those countries will not be as willing as the UK to force ISPs to remove identifying information. As such any steps that may be implemented in the near future are likely to focus on reducing the harm this offence causes within the UK’s jurisdiction.

The Government should be applauded for attempting to bridge the gap between the digital age and our current, outdated, legal framework for dealing with digital offences. Consultations have been undertaken, and there are clear steps that can assist in reinforcing the protections afforded to adult victims of sexual violence. The next step will be to see what shape the Government’s White Paper on Internet Safety Strategy takes.

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