This week the nation’s attention was brought to the unconsented release of well over 100,000 intimate photos of Irish women, in what is certainly the most widespread instance of image-based sexual assault in the state’s history. The focus for many has turned to the legal implications for those involved.
The Claim
According to the Victim’s Alliance, an advocacy group, 140,000 intimate photos of women, some underage, were collected on a number of servers by hundreds of men as part of an organized effort. These photos were leaked without the consent of the women involved, affecting thousands across the country. Gardaí are currently investigating in order to determine whether a crime has been committed.
The Legal Implications
As the law currently stands in Ireland, image based sexual assault is not a crime. However, there is a bill called the Harassment, Harmful Communications and Related Offences Bill currently being debated in the Dáil that would make this activity illegal. While the groundswell of activism and public support caused by this event has precipitated the near-certain passage of this bill, ex post facto criminal sanctions are unconstitutional in Ireland. This means that this law could not retroactively be applied to the case at hand even if it comes into force.
If, however, Gardaí are able to prove that underage persons are involved, the men involved may be liable under the Child Trafficking and Pornography Act, 1998. Sections 5 and 6 prohibit the production and possession of child pornography.
However, prosecuting them for this may prove to be somewhat impractical. Both sections specify throughout that the persons involved must knowingly produce, distribute, or possess child pornography. It may be difficult to find a specific person liable: many of the men involved are anonymous, and if found, could easily raise their hands and simply say that they weren’t involved in that aspect of the leak. Unless the Gardaí are able to find enough evidence to make a hard link between certain men involved and child pornography, it will be difficult to prosecute this.
So, What Can Women Do?
There are other ways that the women involved could seek some recourse. If any of the leaked photos were done so in an act of “revenge porn”, which is likely, there is some precedent of the courts issuing a protection order against the men involved. Alternatively, considering that some of these photos came from OnlyFans and other similar sites, some of the women involved may have a claim in copyright. While it is unclear if this would apply in this jurisdiction, many content creators in this field from other countries rely on their copyright in order to issue takedown notices, and even to begin lawsuits.
They also may have a claim of harassment under the Non-Fatal Offences Against the Person Act 1997, however, many experts are sceptical, so it would depend on how sympathetic the court is. It is also theoretically possible that these women would have a claim of defamation, again depending on the sympathy of the court.
Overall, as the law stands today, Irish women lack significant recourse in the criminal courts for this breach of privacy and trust. While a few of the men involved may be liable for child pornography, it is unlikely that many will be charged with anything. What little recourse may exist in a civil context would depend on the sympathy of the court and by stretching already-existent law as far as possible.
Jack McGee – Reporter
