Revenge pornographers usually intend to harm their victims and succeed in doing so. If at least some of these potential tortfeasors can be deterred, by tort liability, as argued above, then it seems clearly justified, notwithstanding its likely limited direct impact on rates of offending. This provides a foundation for carving out the behaviour as deserving of tort liability, in the first place, as it suggests that revenge porn dissemination is a type of behaviour which ought to be heavily deterred. Weinrib observes that tort liability may also indirectly lower rates of offending in the long term. He delineates two distinct functions of tort law. 59 First, the law
establishes just rules for the allocation of costs of wrongdoing between the parties. Second, the very process of defining wrongs and penalising wrongdoers signals the wish of the legal system to deter wrongful conduct. While the second function in itself does not determine the norms of positive law, it is ‘an additional feature that comes into play once the norms have
57 Popper (n 47) 195.
58 Tom Baker, Alon Harel and Tumar Kugler, ‘The Virtues of Uncertainty in Law: An Experimental Approach,’
(2004) 89 Iowa L R 443, 464.
been determined.’60 Hence, the legal system’s recognition of revenge porn as tortious conduct
helps to establish a social norm about how people should treat each other: the conduct is deemed to be unacceptable by society, and falls below the baseline of tolerable conduct.61 For
those actors who are responsive to such normative messages, the process of defining wrongs and penalising wrongdoers can essentially add another layer of deterrence, creating further disincentives to act.
Economic analysis thus provides good justification for imposing compensatory liability on revenge pornographers, and, additionally it can explain the availability of punitive damages for revenge porn torts. Revenge porn causes both tangible and intangible harms to victims, and the losses generated by these harms can be estimated, in monetary terms, when calculating the compensation awarded to victims in damages. The scope and extent of revenge porn harms has been delineated, in detail, in Chapter 1, but to summarise, these can be measured in both pecuniary and non-pecuniary terms. Pecuniary losses can arise if victims lose or are forced to leave jobs, or if their future education or employment prospects are significantly compromised; some victims may be forced to close down existing Internet accounts, causing financial disruption. Others may feel compelled to relocate, and in some cases even change their identities, resulting in financial losses. In non-pecuniary terms, individuals subjected to this type of sexual victimisation are harmed by the vengeful nature of the act, and by having their confidence breached and their privacy invaded in this way. Moreover, revenge pornography often interferes with and sometimes destroys victims’ relationships with other people.62 As
Adjin-Tettey observes, sexual victimisation can have serious short and long-term consequences for victims, and hedonic damages should include the distress suffered by victims, and the loss of enjoyment for life. 63
Damages paid to tort victims in England and Wales, include general and aggravated damages, and a third category: non-compensatory exemplary damages. General damages are compensatory, and thus are calculated to put victims back in the material position, as far as
60 Ibid, 625.
61 Andrew F Popper, ‘In Defence of Deterrence’ (2011) 75 Alb L Rev 181, 187.
62 Adrienne N Kitchen, ‘The Need to Criminalize Revenge Porn: How a Law Protecting Victims Can Avoid
Running Foul of the First Amendment’ (2015) 90 Chi Kent L Rev 247, 248.
63 Elizabeth Adjin-Tettey, ‘Sexual Wrongdoing: Do the Remedies Reflect the Wrong’ in Janice Richardson,
possible, that they would have been in had the tort not been committed.64 Aggravated damages,
which are primarily compensatory, may also be awarded where the defendant’s behaviour has been especially reprehensible, and where the court considers that shocking conduct has caused the claimant a special loss.65 As discussed above, however, empirical evidence suggests that
individuals do not respond to the threat of tort liability unless the threat of sanctions is nearly certain, and actors do not underestimate the likelihood of paying damages. Mere compensatory liability is, therefore, likely to be an inadequate deterrent unless supplemented by exemplary damages. Exemplary (or punitive) damages are non-compensatory, and are awarded to punish the defendant, although until recently, they could not be awarded where the claimant had not also suffered compensable damage.66 Their use in tort settlements is controversial,67 as punitive
damages are thought to blur an important functional distinction between the civil and criminal law, according to which punishment is properly a function only of the latter system. The availability of punitive damages for revenge porn victims, does, however, enhance the economic justification for addressing revenge porn in tort law.
Justifying addressing revenge porn in tort law on the ground of economic analysis theory becomes more challenging, however, when considering the theory’s reliance on rational choice models. As discussed earlier, these assume that, to a certain extent, whether consciously or unconsciously, individuals will make decisions about how, or whether to, engage in certain activities, by weighing up the costs and benefits of participation. Cardi et al assert, however, that people are not always rational actors, but sometimes act from ‘reflex, habit, or snap judgment.’68 Goldberg similarly discerns that a good deal of tortious conduct comes in the form
of ‘momentary lapses’ that may not be deterrable.69 Arguably, most initial disseminators of
revenge porn, who are often spurned lovers motivated by a vengeful desire to harm former partners, are not acting rationally. As Posner observes, ‘economic analysis [relies]…on methodologies that are not well suited to analysing emotion,70 positing that, while rational
64 Livingstone v Raywards Coal Co (1880) 5 App Cas 25, 39.
65 Daniel Khoo and Tom Windsor, Civil Litigation, Evidence and Remedies 2015-2016 (2nd edn, CreateSpace
Independent Publishing Platform, US, 2014) 37-38.
66 Exemplary damages can now be awarded without demonstrating any pecuniary loss, as decided in Vidal-Hall
v Google Inc [2015] EWCA Civ 311 (CA (Civ Div)).
67 In Rookes v Barnard [1964] AC 1129, the House of Lords held that exemplary damages should be awarded in
only the narrowest of circumstances.
68 Cardi et al (n 37) at 569 (fn 10), who cite William H Rodgers Jr, ‘Negligence Reconsidered: The Role of
Rationality in Tort Theory’ (1980) 54(1) S Cal L Rev16-23.
69 Goldberg (n 35) 558.
actors might be deterred in a state of pre-emotion - or calm - once they enter the emotion state, they are not usually subject to deterrence,71 as ‘an angry person’s action is to harm the offender,
even at cost to oneself.’72
In his study on the role of emotions in decision making, Loewenstein similarly finds that a person in a ‘cool,’ unemotional state will have difficulty predicting his or her own behaviour, at a point in the future, when he or she is in a ‘hot, emotional state’.73 Loewenstein describes
this failure for people to accurately predict their future behaviour as the ‘empathy gap’ between individuals’ cool and hot selves, which can lead to an underappreciation of the power of their future emotions.74 This implies that people will systematically fail to take sufficient
precautions to avoid situations in which they are likely to become overwhelmed by their emotions.75 As Lowenstein et al observe, when applied to rational choice models of decision
making, ‘the predictions people make about their response to a hypothetical scenario…while “cool” may not accurately reflect their actual response in a comparable, real situation while “hot.”’76
The empathy gap theory suggests that visceral factors, such as pain, anger and jealousy,77 could
well predominate the decision-making processes of potential revenge pornographers who are acting in the heat of passion. A visceral urge to harm a former lover is unlikely to be deterred by the threat of tort liability, even if that same actor could not imagine taking such a risk while in a cooler emotional state. While economists have not explicitly denied the existence and significance of visceral factors, they have traditionally left them out of their analyses because they are ‘too unpredictable and complex to be amenable to formal modelling.’78 Loewenstein
also suggests that although the transient nature of emotions may lead some economists to
71 Ibid, 1994. 72 Ibid, 2007.
73 George Loewenstein, ‘Out of Control: Visceral Influences on Behavior,’ (1996) 62 Organizational Behavior
and Human Decision Processes 272, 274.
74 George Loewenstein, Daniel Nagin and Raymond Paternoster, ‘The Effect of Sexual Arousal on Expectations
of Sexual Forcefulness,’ Journal of Research in Crime and Delinquency (2007) 34(4) 443, 445.
75 Ibid. 76 Ibid.
77 See generally George Lowenstein, ‘Emotions in Economic Theory and Economic Behavior’ (2000) 90(2) The
American Economic Review 426-432, who explains that visceral factors refer a wide range of negative emotions (e.g. anger, fear) drive states (e.g. hunger, thirst, sexual desire) and feeling states (e.g. pain).
consider their influence unimportant,79 the feeling of injustice that people have when they
believe they have been treated unfairly is of particular relevance to economics, as it often causes them to act contrary to their own economic interests.80 A revenge pornographer acting
in the heat of passion, is not likely, then, to be acting with an eye on his economic interests, and be deterred by the threat of tort liability. This makes it more challenging to justify the deterrence aim of economic analysis, when considering those revenge pornographers who are acting under the influence of visceral factors, such as rage and jealousy.
However, it must be reiterated that there is more than just one category of revenge pornographers. As outlined in Chapter 1, in addition to those individuals who are acting in the heat of passion, there are also many individuals who are motivated to non-consensually disseminate other people’s sexually-graphic images, for reasons other than revenge.81 As
McGlynn and Rackley elucidate, these motivations can include disclosure for financial gain, having a laugh, gaining notoriety amongst a friendship group, or to control, harass or blackmail other individuals.82 Images can also be acquired, opportunistically, if they are hacked, or
obtained from stolen devices, before being widely circulated online. This was the case in the celebrity iCloud hack, in 2014, where images were hacked from the Apple iCloud platform, before being widely disseminated.83
Moreover, revenge porn disclosures are amplified by secondary disseminators and Internet intermediaries through subsequent reposting, sharing, and hosting.84 Because secondary
disseminators and Internet intermediaries have little or no prior connection with victims, they are unlikely to be disclosing images under the same hot visceral influences of a spurned lover, but, rather, would be acting in a cool, unemotional state. These categories of revenge pornographers could be far more deterrable on average. Individuals disseminating,
79 Ibid. 80 Ibid, 429-30.
81 For more detail see Chapter 1.4.
82 Clare McGlynn and Erika Rackley, ‘Image-Based Sexual Abuse,’ (2017) 37(3) Oxford Journal of Legal
Studies 534, 538.
83 Paul Farrell, ‘Nude Photos of Jennifer Lawrence and Others Posted Online by Alleged Hacker’ The Guardian
(1 September 2014) < https://www.theguardian.com/world/2014/sep/01/nude-photos-of-jennifer-lawrence-and- others-posted-online-by-alleged-hacker> accessed 15 January 2019.
84 ApekshaVora, ‘Into the Shadows: Examining Judicial Language in Revenge Porn Cases,’ (2017) 18 Geo J
transmitting or hosting images with clear-eyed vision, might make different decisions about acting, given an awareness of the law, or understand that in acting, or failing to act (for example, by refusing to take images down from host websites), then they could end up in court and forced to pay compensation.
A further challenge for justifying addressing revenge porn in tort law, on the ground of economic analysis theory, is its principal focus on defendants, while claimants play a more secondary role.85 Claimants’ incentives, such as the need to induce enforcement of the norm,
receive far less attention. As Posner observes, ‘[t]hat damages are paid to the plaintiff is, from an economic standpoint, a detail.”86 According to economic analysis, damages are not a matter
of compensating any particular revenge porn victim, but rather of providing that revenge pornographer, and other prospective revenge pornographers, incentives to take efficient levels of precaution going forward.87 Economic analysis thus fails to join the defendant and the
claimant in any kind of relational nexus, and it therefore cannot attach appropriate importance either to the fact that the defendant caused the claimant’s injury or to the goal of correcting an injustice. As Coleman et al observe, economic analysis only accounts for the relationship between a particular injurer and victim insofar as ‘the nature of this relationship provides evidence of the ability of either person to reduce accident costs.’88 From this perspective, there
is no intrinsic reason why a claimant should argue in court that they had been wronged by that particular defendant, rather than by a defendant who was in a better position to reduce overall costs.89
To sum up, there is clearly some economic justification for addressing revenge porn in tort law due to its deterrent effects on potentially deterrable revenge pornographers. The threat of tort liability could have a powerful effect on the behaviour of certain classes of potential offenders. However, any deterrent effect can only be partial, because some potential offenders will be unaware of the law whilst others will fail to make rational choices due to their powerful
85 Weinrib (n 59) 627.
86 Richard A Posner, R, Economic Analysis of Law (2nd edn, 1977) 143.
87 James Gordley, ‘The Moral Foundations of Private Law’ (2002) 47 Am J Juris 1, 13.
88 Jules Coleman, Scott Hershovitz, and Gabriel Mendlow, ‘Theories of the Common Law of Torts’, The
Stanford Encyclopedia of Philosophy (Winter 2015 Edition), Edward N. Zalta (ed.), URL = <https://plato.stanford.edu/archives/win2015/entries/tort-theories/> accessed 15 January 2019.
emotional motivations. A further issue for economic analysis is that it does not enjoin the claimant and defendant in a correlative structure that appropriately reflects the injustice inflicted by one party on the other.
An account of tort law that focuses on the moral aspect of revenge porn conduct, and which takes into account the relationship between the injurer and the victim, is therefore a necessary component of any complete justification of tort liability. To this end, the following discussion will examine another of the contemporary tort theories, corrective justice theory, to establish whether this can provide better justification for addressing revenge porn in tort law than economic analysis theory.