Virtual Rape: Israel’s Roadmap to Internet Privacy

Over the last few years the dissipation of a person’s image has not only become ubiquitous but it has been embraced by many. The impact on privacy or publicity rights of the Instagram culture will be discussed in a series of articles over the course of the year, which will analyze the law as it currently stands in different jurisdictions to see if the legislatures are lagging behind.

In the technology world we all look to Israel for the type of cutting edge hardware and software developments that have given us the likes of the Pentium chip, flash drives and Waze and led to $7.6 billion in high-tech exits in 2013. It should therefore be no surprise that the Knesset, in a similarly forward thinking fashion, has taken the bull by its horn in a bill to outlaw revenge porn.

While it is true that the biggest names in reality TV have been launched by the leaking of a sex tape, the uploading of a Kardashian or Paris Hilton style video or image could result in a criminal conviction in Israel and up to 5 years in prison and rightly so. What is very impressive is that there are no tortured questions of privacy, publicity and freedom of speech that often pervades legal changes, but there is an elegance in the jurisprudential simplicity of the offense.

The Sexual Harassment Prevention Bill was amended so that no video or image of a sexual character can be uploaded to the internet, and specifically to social media, without the victim’s knowledge and consent. The bill, which uses sexual harassment theories, has created the crime of ‘virtual rape’ and passed with no votes in opposition. It is assumed in the offense that images or videos of a deeply intimate nature would, or ought to, cause harassment, alarm or distress, and therefore criminal liability ensues. The existence of a criminal penalty however does not preclude concurrent civil action for compensation though that can be ordered in the context of the criminal case.

MK Kariv backed the bill in response to an incident in her constituency where an intimate video was uploaded to the mobile chat application WhatsApp by a man after a break up. The video went viral, obviously causing a great deal of distress to the ex-girlfriend who was subjected to this most adult form of cyber bullying, cyber libel and cyber crime.

There is no doubt that this is a groundbreaking piece of legislation that has moved swiftly to address a very serious problem where a person’s online and actual reputation can be eviscerated in minutes. This should be mirrored by other legislatures to not only protect reputations and keep intimate that which was originally intended to be intimate, but this could also be utilized at the forefront of the wars against child porn and sexual slavery.

For those who are concerned that there may be freedom of speech violations, I am yet to hear anyone state that being able to upload sexually explicit videos, taken within the trust of the bedroom, and without the consent of one of the participants, is a good thing. Then again, when certain politicians speak about rape, virtual or otherwise, anything can happen.

Robert Garson
rg@gs2law.com