Revenge porn is a recently created offense designed to address a new type of fraudulent behavior.
The definition of revenge porn as a crime
Revenge porn is the act of making public pornographic content involving a person whom the perpetrator wishes to humiliate in order to take revenge. Article 67 of the law of March 7, 2016 created a new article under Articles 226-1 and 226-2 of the Penal Code relating to offenses of intentional invasion of privacy through the transmission of private conversations or the recording and dissemination of images.
The new Article 226-2-1 of the Criminal Code stipulates that "When the offenses referred to in Articles 226-1 and 226-2 relate to words or images of a sexual nature taken in a public or private place, the penalties shall be increased to two years' imprisonment and a fine of €60,000.
The same penalties shall apply to the act of bringing to the attention of the public or a third party any recording or document containing words or images of a sexual nature, obtained with the express or presumed consent of the person or by the person themselves, using one of the acts provided for in Article 226-1, without the person's consent to its dissemination.
The material element of the offense of revenge porn or pornographic revenge
The material element, i.e., the element that forms the basis of the offense, is "any recording or document relating to words or images of a sexual nature, obtained with the express or presumed consent of the person or by the person themselves, using one of the acts provided for in Article 226-1."
Two things should be clarified here:
- Regarding the concept of speech: simple noises or moans do not constitute speech.
- Regarding the concept of the image: it must allow the person claiming to be a victim of revenge porn to be identified; this is the essentialcondition forall violations of privacy.
Therefore, if the image focuses on a genital organ and does not allow the person's face to be seen or identified in any way, Article 226-1 will not apply.
In addition, the judge will not view a photograph of a sexual encounter in the same way as an image of a woman sunbathing topless by the pool.
Your lawyer, as a specialist in criminal law, will be able to advise you on your chances of securing a conviction against the perpetrator of revenge porn.
Indeed, as we have seen, not all published sexual content necessarily constitutes revenge porn.
Therefore, only the expertise of a lawyer specializing in criminal law will enable you to determine whether or not the sexual image or video that has been published constitutes the material element of the offense of revenge porn.
The moral element of the offense of revenge porn or pornographic revenge
Revenge porn is an intentional offense, as stipulated in the first paragraph of Article 123-1 of the Criminal Code: "There is no crime or offense without intent to commit it."
The intentional nature of this offense is the fact that the perpetrator is fully aware that by acting in this way, they are violating the sexual privacy of the person.
With regard to the second paragraph of Article 226-2-1 of the Criminal Code, the legislator has been more specific, stating that "in the absence of consent ," it must therefore be understood that the perpetrator of the offense is aware, when disseminating the images or videos, that they are harming the identified person and acting against their consent, even though that person agreed to appear in the images or videos.
In criminal law, with some exceptions, if there is no intent to commit an offense, the offense is not characterized.
When it comes to revenge porn, the characterization of the moral element can seem ambiguous, which is why it is essential that you seek the assistance of a lawyer specializing in criminal law so that they can work with you to develop a strategy to characterize the malicious intent of the person who published the sexual content.
The statute of limitations for the offense of "revenge porn"
Revenge porn is a criminal offense punishable by two years' imprisonment and a fine of €60,000. Therefore, pursuant to Article 8 of the Code of Criminal Procedure, the offense of revenge porn is subject to a statute of limitations of six years from the date on which the offense was committed.
If the statute of limitations is six years, the longer you wait, the more likely it is that the court will consider that your loss was not so significant.
In fact, they will conclude that you did not act urgently, which proves that your loss is not significant.
Furthermore, gathering evidence is essential in this type of case.
Therefore, you should not allow too much time to pass between the commission of the offense and your legal action.
It is therefore in your best interest to act as quickly as possible by hiring a lawyer specializing in criminal law so that they can quickly take all necessary steps to obtain compensation for your damages.
Compensation for damages resulting from revenge porn or pornographic revenge offenses
Since revenge porn is a criminal offense, it necessarily causes harm. Thus, pursuant to Article 2 of the Code of Criminal Procedure, anyone who has personally suffered harm as a result of the offense may obtain compensation for their loss by bringing a civil action for damages.
Your criminal lawyer will support and advise you throughout the proceedings you have initiated so that you obtain the best possible financial compensation for your damages.
For more information, please feel free to contact Attorney Avner DOUKHAN.