Revenge pornography : the constitutionally protected right to freedom of expression or the infringement to the fundamental human right to privacy?

Abstract

The motivation behind this study was brought by the realisation of the prominent issue of non-consensual pornography which has experienced an uncontrollable growth over the past few years and was particularly instigated by the surprising fact that the fundamental human right to freedom of expression is being used as a means to allow this practice to flourish while curtailing the right to privacy in the process. The reader is initially introduced to the concept of ‘revenge porn’ through a thorough definition of it where common misconceptions of the term are explained for a better understanding of the whole study. Chapter 1 starts focusing on the right to privacy as the preeminent violation caused by this practice. A general overview of this right is provided to enhance the reader’s understanding of its relationship with revenge pornography followed by a comparison between different European States on the different ways in which they are dealing with this issue. The second chapter goes into the question on how the right to freedom of expression conflicts with the right to privacy through a comparison between the application of both rights in the United States of America and in Europe. A stark difference in the way these rights are applied by the two distinct judicial systems is drawn out from this comparison, allowing for a clearer perception of the difference between the issue of revenge pornography in the U.S. and Europe in relation to the conflict between these two rights. Chapter 3 deals with the ways through which this conflict can be resolved, primarily on how these two rights can be balanced. This then leads to the exploration of the curious way in which the right to freedom of expression acts as a restriction towards curbing the issue of revenge pornography and also how the restriction of revenge pornography itself may be considered by some to be an unconstitutional impediment to the right to free speech. Through the first part of fourth and final chapter this author has attempted to reconcile these conflicting rights in matters of revenge pornography by highlighting different elements which need to be considered when seeking a remedy to this practice. These elements are then attributed to different remedies which are already being used by various States both in the U.S and in Europe. This part of the chapter particularly serves to support the ultimate conclusion of this study. The second part of Chapter 4 deals with how Malta is tackling the practice of revenge porn, emphasising the ways through which the smallest State of the European Union has become a pioneer in the criminalisation of revenge pornography. This is followed by suggestions as to what other actions could by implemented by Malta towards the curtailing of this practice. What this study ultimately leads to is the conviction that no human right should overcome the other but rather that a fair balance should be struck between them.