Delivering (Up) a Copyright-Based Remedy for Revenge Porn
by Yin Harn Lee
Lecturer in Law, University of Sheffield
Despite legal reforms that have recently been implemented to address the problem of what is colloquially known as ‘revenge porn’, victims continue to encounter difficulties in seeking the removal of their private sexual images from third-party websites. While victims who are able to assert authorship and hence ownership of the copyright in these images can rely on the notice and takedown provisions found in the copyright laws of many jurisdictions to compel their removal, victims who are unable to assert such ownership are left without legal recourse. This would be the case where the images in question had been recorded by the perpetrator. However, existing proposals for victims to be recognized as the joint authors of their private sexual images or to be granted a new exclusive right to prevent their distribution, while well-intentioned, would disproportionately disrupt fundamental copyright principles.
Drawing inspiration from the terms of the settlement in the recent case of Chambers v DCR, this article puts forward the following solution: where a claimant has succeeded in obtaining injunctive relief against a defendant on the basis of the non-consensual distribution of the claimant’s private sexual images, the court may in an appropriate case make a further order directing the defendant to assign any copyright they may have in the images to the claimant. This would function in a manner akin to the well-established remedy of delivery up. While the order of delivery up has traditionally been directed at physical rather than intangible property, the courts have in more recent years been willing to grant it in ‘cybersquatting’ cases so as to compel the transfer of unlawfully registered domain names to brand owners. The extension of the remedy in this way is therefore not without precedent. While it is something of a makeshift solution, the proposal fills a vital gap in the array of remedies available to victims of revenge porn, pending the development of more comprehensive international standards for privacy rights.
[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). An extended version of the present contribution will be included in one of the forthcoming issues of the Journal]