Cameras in mobile phones, mini web-cams, fast and affordable Internet access, MMS and the social network Facebook. These are all tools that create the perfect background for an entirely new phenomenon, called Sexting: sending sexual messages or images. To lecture about variety of legal issues that may occure in connection with this activity came Dan Svantesson from Bond University in Australia to the Cyberspace conference at Faculty of Law of Masaryk University.
According to Svantesson sexting may have many forms from the fairly innocent ones between adults, to serious ones, such as when an older man tries to get sensitive photographs of underage girls. But sexting can also induce a completely absurd situation, ending with thoughtless teenager being send to jail for child pornography.
Sexting is relatively widespread issue without having yet been given sufficient attention. According to one recent survey 10 percent of American youth between 14 and 24 indicate that they had sent naked pictures of themselves to someone else. „Person sending such pictures, and it happens probably every day somewhere, does something that might seem like a minor issue, but may have a lot of legal implications,” warns Svantesson.
What laws can one breach while sexting?
It depends on many variables, for example your age. If the actors of sexting are adults, then obviously there are no child pornography issues. If you are sending an image of yourself to another adult, then probably there are not going to be any legal issues at all. In most cultures, it would be very difficult to argue that any law has been breached. But if the receiver starts passing the pictures to third parties then there could be issues of defamation, some privacy issues and even copyright issues, because you as a sender have rights to that image and the receiver shouldn't spread it without your permission. And then there is of course child pornography when it comes to teenagers.
It is right that there might be a swing in the direction of this becoming normal, but then there might be a counter-movement and people will say: no this is a wrong way and would like to go back. But then it is too late, because as we know, it is impossible to remove any content from the internet. Once it is there, it is just there. If society values will change from one extreme back and forth, then the content is going to get stuck there anyway. That is why we have to be careful.
You mentioned child pornography. What happens when two fourteen year old children are sexting and passing their pictures to others? Because it seems absurd, that they should be accused of child pornography.
If you are fourteen years old, your same old girlfriend sends you a picture and you are passing it to friends, you are obviously doing something wrong, it is at least breach of confidentiality. It is a big step to say that you should be accused of child pornography, but it can happen. It is obviously not right, because your whole life will probably be destroyed, you might go jail and would be in a sex offender registry. Such punishment is not in line with the crime.
How would you solve that?
Clearly there should be consequences, possibly of a criminal nature, but not to the extreme that can happen today. But it is hard to say, where to draw the line. When is it child pornography a when it is not? We have to think that through, because there are even more absurd cases. When you are fourteen and you post your naked pictures on the internet, you are victim and the offender of child pornography at the same time.
So the law should change?
The law as it stands is not well-equipped to deal with sexting. Defamation law might not help, because we know cases where it is hard to argue that someone has been defamed. The law should be applicable in these cases, but it is not. The other side is that the law is applicable in the way it shouldn’t be – that might be the cases of child pornography we were talking about. So we really should ask whether we need specific new legislation around sexting. But the problem would also be: How do you make it, so it would be relevant also in five or ten years. You would have to struggle with technological development. But to answer the question: Yes, we definitely need an adjustment of the law.
Would that be enough?
Of course not, we also need to educate young people and make sure they understand the long-term consequences of not just sexting but generally posting private information about themselves. I often tell my students about any posting they do on Facebook to apply mother-in-law test first. That means that you shouldn’t put anything on Facebook, you wouldn’t be happy your mother-in-law or future mother-in-law to see. It could be quite a boring world, if people would stuck on this rule, but they should at least consider that when deciding what to post.