“In cases of revenge porn, ECA’s protection fails and the Maria da Penha Law is not used”

By Fernando Martines

The exposure of private pictures is not even close from being the only problem women face in cases of revenge porn that reach Justice. In many cases, the man in ownership of intimate videos and photos of women extorts and blackmails — forcing the victim to have sex in exchange to not publishing the images. In these cases, the Public Attorney’s Office is the petitioner of the lawsuit, and the São Paulo Justice has many times reached convictions.

The mapping of these cases was made by InternetLab, a law and technology research center based in São Paulo, financed by donations, mainly from the Ford Foundation. The group went to the field to research how Justice deals with cases of unconsented dissemination of intimate images on the Internet. For that, they analyzed all rulings of the São Paulo Court of Justice published between 2013 and 2015 that involved the theme.

Mariana Valente, doctoral student in Juridical Sociology at the Law School of the University of São Paulo (USP) and director of InternetLab, the researched Juliana Ruiz, undergraduate Law student at USP and Natália Neris, master in Law by Fundação Getúlio Vargas, point that the situation changes when the man posts the pictures without making any kind of request. Then the problem is not to identify the authors: in the majority of cases, the victims know who leaked the photos or videos. What happens in these cases is that the Public Attorney’s Office stays out. The victim must file the lawsuit on their own. If they don’t have the resources, as many times it is the case, they can resort to the Public Defender’s Office, but the entity has already told the researches that they do not have the condition to look after these cases.

On the research, another important question came up: what to do when the images are from children and teenagers? The Statute of the Child and the Adolescent (ECA) determines that the Public Attorney’s Office should act to guarantee the rights of the minors. But, in practice, the researchers observed that ECA is not prepared to deal with these cases, mainly because it has a closed definition of what is pornography. “This legislation was not made for these cases. It was made more to fight child pornography”, highlights Juliana Ruiz.

A way of broadening women’s protection against the violence of image exposure is to apply the Maria da Penha Law to these cases, since it covers psychological violence. However, the researchers saw that this legislation it almost never used — and its triggering should be pointed by who is proposing the action.

Congress, always in trial and error, tries to deal with the topic: “There is a bill that predicts a fusion in the chapter that defines the types of violence in the Maria da Penha Law, and aggression against sexual liberty would enter there. There is another proposition of including in the Penal Code a specific crime and an alteration in the Maria da Penha Law”, explains Natália Neris.

Mariana, Juliana and Natália’s research resulted in the book The Body is the Code: legal strategies to face revenge porn in Brazil, in digital format, and with free access (in Portuguese).

The goal was not so much to try and propose solutions, but to try and show how Justice has been dealing with these cases and expand the debate. Talking to people who work with the young, they saw that all of them said that this defamation through images is one of the biggest problems among teenagers in schools — in all schools they consulted, there was at least one case.

They cared about not defending a punitive position by the state, even because they recall that any action of this kind needs other debates, such as the Brazilian prison conditions.

Read the Interview:

ConJur: This issue of revenge porn is not a new thing, but it seems to be more discussed over the last years. Where did the idea to do this research come from?

Mariana Valente: Talking to people who work with young people, everyone says it is the number one problem in schools. So we decided to study the theme and started to follow cases that reached the media, how they were reported and how they developed. But we began to get annoyed from just following through the press because it selects the cases shown and we couldn’t get access to show how it really happens, the cases that don’t reach the news. And to understand how the Law looks at this problem, we thought that a good way would be to look to the decisions of the Court of Justice.

ConJur: When a case of intimate image leak happens, who goes to Justice is the Public Attorney’s Office or is it the victim themselves?

Mariana Valente: Cases against teenagers are processed through the Statute of the Child and the Adolescent, so it is the Public Attorney’s Office that takes care. On the cases against adults, if we are talking about the spreading of real intimate images, the criminal offense for that is slander and libel, that are private legal actions. So it is the victim who has to hire a lawyer and mobilize Justice or go to the Public Defender’s Office for that, if they don’t have the money to appoint a lawyer. But there are other cases, in which the dissemination of image does not happen, but it can involve threats, extortion and rape. On those cases, the Public Attorney’s Office acts and all cases we saw reach the Court ended up with convictions, a real penalty of confinement.

ConJur: And what about the cases in which there isn’t this extortion, those in which the aggressor posts the images without asking anything?

Mariana Valente: Those are cases of slander and libel and it is where the biggest problem is, because then it is a private legal action. We’ve only seen two decisions of libel in the São Paulo Court of Justice and they were not decisions of merit. The reason why not many of those cases reach the justice system is precisely because the victim has to appoint a lawyer or it goes to the Public Defender’s Office. We spoke to the PDO and they told us that this role of acting as an accuser, like a lawyer in a private action is something they cannot do because of the enormous demand they already have. The person has to get a dative attorney — which is almost impossible.

ConJur: So the cases of image dissemination without extortion don’t reach Justice?

Mariana Valente: These cases end up in the Special Civil Court, that can resort to its own collegiate body and, so, they never reach the Justice Court. It can be that many cases are resolved there, so we cannot say there aren’t any. When it goes to the Jecrim [Special Criminal Court] there’s a series of possibilities of substituting the deprivation of liberty penalty for other penalties. The penalty transaction itself. If the defendant is primary, it will be filed as if it were a deal with Justice to do community service, for it to not become a criminal procedure.

ConJur: Is a new law to deal with these cases necessary or is the existing legislation, if well enforced, enough?

Natália Neris: It is interesting that we started from a first diagnosis in which the idea was to create a new criminal type, to create the crime of revenge porn. But we saw that the problem manifests itself in various different manners, not only in the lines of those shown by the media: a revengeful ex-boyfriend who exposes. We realized that all other forms of perpetrating this violence are already crimes provisioned in the Criminal Code. Another thing that caught my attention is that almost 70% of the cases involved people that did effectively relate to each other, They could be framed in the Maria da Penha Law, but they weren’t.

ConJur: What about the Judiciary branch, is it ready to deal with this?

Natália Neris: The first issue is the one of access to Justice. If a defamation case happens and the person needs to appoint a lawyer, can every victim get this lawyer, once the Public Defender’s Office can’t handle it?

ConJur: What is a solution path for these problems?

Mariana Valente: Civil instructions against the Internet providers, in terms of “resolving” is a very important point in our research. Those are actions that the victim can move to avoid that the dissemination continues. Of course, this does not solve the first problem, the structural problem, that is machism, which makes this images get disseminated. This will be solved in other ways. But we are showing ways in which the victims can enter a lawsuit against the Internet provider, if that’s the case, or do an extrajudicial notification, to avoid, to remove the content, avoid that it is indexed in searches, we devote a whole chapter to that.

ConJur: Does Google play it hard to take these things down?

Mariana Valente: Since last year they are saying that they take. And they are saying that they take it down worldwide. There’s an address — that we even refer to at the end of the research — that the victim can access and request the removal. And Google removes it. There’s also the issue that the Internet providers are forced by a civil process in Brazil to take down this kind of content. The general rule is that the Internet provider is only liable for an illicit content after the order from a judge. The exception, in the Marco Civil da Internet (Brazil’s Internet Bill Of Rights), is this kind of content.

ConJur: The Marco Civil has been working well in these cases?

Mariana Valente: It is hard to say because we only looked at the cases until the middle of 2015 and little had reached the Court of Justice after the approval of the Marco Civil, which was in 2014. But of what reached and from the interviews we did with lawyers, it seems like the rule is working well. It is clear that once notified, the Internet provider will become liable if the content is not taken down. It seems to be changing their conception about liability to that.

ConJur: In the book, it is clear that ECA does not protect the adolescents from this image dissemination. Where does the Statute fail?

Juliana Ruiz: The protection of ECA is not enough because for an adult to be processed, it is necessary to prove that he knew that the adolescent was underage. We had a case in which a girl that had photos exposed was in college and had been engaged. So the Associate Judge spoke on the ruling that as she had been engaged it was reasonable for the man to not know that she was underage. So he was not condemned. And ECA is very specific when is deals with pornography, determining that it is a scene of explicit sex or with genital exposure. So when there are cases in which the victims were in underwear, the people were not convicted because there was not explicit sex or genital exposure. This legislation was not made for these cases of teenagers, it was more so to restrain child pornography.

Mariana Valente: it was quite interesting for us to see that most of the cases involving adults ended in convictions, and on those involving ECA, half ended up in acquittal. Our first reaction was of surprise because this was supposed to be a more protective legislation. When a Judge uses ECA, it seems as they are thinking: “This punishment is for a pedophile, and this is not the case here”. There is also that question of thinking that if the girl let herself be photographed, we are not talking about an abuse.

ConJur: But we are talking about different things. The adult has suffered an extortion and the young girl has been exposed, those are different types in the legislation.

Mariana Valente: You are right, we cannot compare with defamation because we have not seen those cases. We are talking about cases against adults and cases against young girls. We did not get any cases of threat and extortion against young girls. ECA has been left so strict, that it is less strict. Because they tried to encompass every way: it defines what is pornography and left a bunch of things out. ECA criminalizes the mere possession of intimate images. So all the cases we analyzed should theoretically result in convictions, including photographing. Thinking in the logic of the law, if the person has an intimate image of a girl, they should be convicted.

ConJur: To send a pornographic image of an underage girl to a friend is a crime of child pornography?

Mariana Valente: Yes, it is a crime of child pornography.

ConJur: But the Associate Judges don’t understand it that way?

Mariana Valente: They push it away, they say that the victim let herself be photographed.

ConJur: So it is not the text of ECA, it is its enforcement.

Mariana Valente:  It is both, I think. I think that the text of ECA, when it defines, it restricts what is child pornography, as the Criminal Law is always presented restrictively, everything that is left out cannot be framed there. Besides this, I think that as a crime, it is too directed to punish pedophiles. In this other case, we are talking about a man who has a relation with a girl and publishes the image. So, when interpreting, his criminal type ends up put away. Another important element is that nothing stops the teenage victim to enter a lawsuit of defamation. But the private process has a decline deadline of six months. If the Associate Judge says it is not the case of child pornography, many times, the deadline to ask for the defamation process has expired.

ConJur: The evolution of technology, smartphone, and mobile Internet, must have deepened this problem a lot…

Mariana Valente: We were even thinking that as technology became so normal, people would learn to live with it and its problems would decrease, but it doesn’t seem to be the case. We listen to stories of girls who had to move to a different city, school, or that ended in depression inside their homes all the time.

Natália Neris: And the stigma strikes necessarily women and for a long time. There are seven cases involving men [as victims] and two of them are married. That is to say, we are talking about a gender issue.

ConJur: So it is important for you that these types of crimes, these kinds of aggression are associated with the Maria da Penha Law, right?

Mariana Valente: It is quite impressive that it has not been used. When we started the research, we saw that there was a draft bill to include the Internet in the Maria da Penha Law and we thought that this wasn’t necessary. During the research, we were getting more and more in contact with researches of the Maria da Penha and we are seeing that it is not only the Internet, everything that is not a bodily injure is very hard to process through Maria da Penha. Whether it is because the police station will not understand there was domestic violence, or because the institutions are overwhelmed…

ConJur: Is it the case of changing the Maria da Penha Law?

Mariana Valente: At the launch of our book, we did a debate with the district attorney Silvia Chakian. One of the things we stood by was that maybe it was interesting for he Maria da Penha Law to be altered as to include these cases and be explicit because apparently, people are not realizing that they can enforce Maria da Penha. Even women lawyer friends of mine said that they did not think of using Maria da Penha for that. But the district attorney pointed out that if we open a breach to change Maria da Penha now, with this ultra conservative Congress, we can’t predict what is to come. So it is best to fight for a better enforcement of the Maria da Penha Law.

ConJur: How?

Mariana Valente: We have to start bringing to the debates that the Maria da Penha Law has to be enforced in these cases of image dissemination. This has to be said to those who enter these lawsuits, like lawyers and district attorneys. We even see that sometimes it is not on the requests.

ConJur: Is there a legislative proposal about revenge porn?

Natália Néris: Up to the point in which we ended the research, there were ten preliminary draft bills. From the project that defines the crime of revenge porn, with the penalty of three months to a year, to the one that proposes to add to the Criminal Code a chapter on the crimes of sexual freedom.

ConJur: Your project has the ambition of proposing a debate more than a punishment, right?

Mariana Valente: We were not very propositive because we thought that this debate should be taken by other positions and not only by those who study the specific problem. We have to think about the imprisonment problem, for example. It is a much broader debate that we are not solving in a research. A very complicated issue is the fact that it is pointed as a crime of defamation, against the honor. In the chapter of crimes against the honor, the legal object, the property legally protected is the honor of the woman, which is a bit weird. In a Criminal Code that has been changed to remove the concept of honest woman, to have to advocate that the honor is hurt when images are spread opens way to a bunch of things such as comments that we heard during the research and interviews, with people saying that a woman does not have honor, she can’t defend her honor. It’s a moral discussion. But why are not talking about a crime that is on the chapter against sexual freedom? We are effectively talking about sexual freedom, but with a progressive look at it. It is a debate being held also in the Legislative branch. It was the woman’s sexual freedom that was hurt, not her honor.