The Case for a Law against the Online Distribution of Non-Consensual Intimate Images in Uganda
| Jurisdiction | South Africa |
| DOI | https://doi.org/10.47348/SLR/v32/i1a5 |
| Citation | (2021) 32 Stell LR 93 |
| Published date | 21 June 2021 |
| Author | Kakungulu-Mayambala, R. |
| Date | 21 June 2021 |
| Pages | 93-128 |
93
https://doi.org/10.47348/SLR/v32/i1a5
THE CASE FOR A LAW AGAINST THE ONLINE
DISTRIBUTION OF NON-CONSENSUAL
INTIMATE IMAGES IN UGANDA
Ronald Kakungulu-Mayambala
LLB (Hons) (Mak); Dip LP (LDC); LLM (Fordham); SJD (Arizona)
Associate Professor, School of Law, Makerere University
Rukundo Solomon
LLB (Hons) (UDSM); Dip LP (LDC)
Associate Researcher, Mawazo Policy Research Centre
Victor Phillip Makmot
LLB (Hons) (Mak); Dip LP (LDC)
Associate, Kirunda & Wesige Advocates
Diana Rutabingwa
LLB (TUoN); LLM (Lond); MSC (Ebor)
Senior Governance and Human Rights Advisor, Deutsche Gesellschaft für
Internationale Zusammenarbeit
Abstract
The distribut ion of sexually graphic or inti mate images of individuals on
the internet without their c onsent is on the rise in Uganda . Several female
celebrities and less er-known individu als have fallen victim to this phenomen on
in recent years. This ar ticle examines the civil and crim inal remedies currently
available to the victims. The article argues that these remedies are insufcient
to deal with the challenge posed by the non- consensual dist ribution of these
intimate images in the online enviro nment and argues for the c reation of a
new law that specically ad dresses this issue.
Keyword s: Revenge porn; non-con sensual intimate images; porn ography;
privacy; Africa; Uganda
1 Introduction
Non-consensual i ntimate images are sex ually graphic or inti mate images
of individuals created or di stributed without thei r consent.1 For images
to be non-consensu al, at least one of the participant s is unaware that their
intimate moments ar e being recorded, or if aware of the recording, is opposed
to the work’s dis tribution.2 Non-consensual images are p opularly referred
to as “revenge pornography”.3 This, however, is a misnomer as the person
1 AE Waldman “A Breach of Trus t: Fighting ‘Revenge Porn’” (2017) 102 Iowa L Rev 709 -735
2 A Bartow “Copy right Law and Pornog raphy” (2012) 91 Or L Rev 1 44
3 The term “revenge por nography”, or its abbreviate d colloquial form “revenge por n”, originated in the last
decade: M Hall & J Hea rn Revenge Pornog raphy: Gender, Sexu ality and Motiva tions (2018) 13
(2021) 32 Stell LR 93
© Juta and Company (Pty) Ltd
https://doi.org/10.47348/SLR/v32/i1a5
who distrib utes the image s may not necessa rily be motivat ed by revenge.4
Notwithst anding, it should be noted t hat revenge by a jilted lover, who brea ks
the trus t with which the int imate imag es were initia lly shared, is t he most
common motivat ion for the distribution of non- consensual images.5 T he use
of the term por nography is al so a misnomer. A key eleme nt of pornogra phy
is its intentio n to cause sexual excitement.6 Non -consensual intim ate images
may be created i n a context that is n ot meant to cause s exual excitemen t,
such as where an i ndividual is secretly r ecorded in circumst ances where they
imagine th at they have privac y, for example in their ow n home. Therefore,
in th is article we use the te rm non-consens ual intimate images (“NCII”) to
describe this phenomenon.
One of the earlie st victims of online NCI I in Uganda was the singer, Cindy
Sanyu (“CS”). In Aug ust 2008 , CS’s intimate images were relea sed by a
local print a nd online tabloid .7 In D ecember 2013, inti mate images of Ruth
Komuntale (“RK”), the princess of Tooro Kingdom, a cultural monarchy
in Uganda, were l eaked onlin e. She claimed the i mages had been l eaked by
her ex-husband.8 Perhaps the most f amous victi m of NCII in Uganda is t he
musician Desi re Luzinda (“DL”) who attrac ted much publicity in November
2014 when intimate images of her went viral on social media.9 Within a few
days, politicians10 and religious leaders11 were calling for her ar rest. She was
summoned by p olice to explain the circ umstances unde r which these intimat e
images were leaked.12 It turned out that she had s hared those images with a n
ex-boyfriend , Frankli n Emuobor. He had releas ed the images t o the public,
believing th at she had cheated o n him with sever al men.13 In May 2019, the
intimate images of comedienne, Mart ha Kay (“MK”) and an intimate video of
Shawula Kasule (“SK”), the daughter of a leading Muslim cleric, the Supreme
4 VN Gr iffith “Sm artphones, Nude Snaps, a nd Legal Lo opholes: Why Pen nsylvania Need s to Amend its
Revenge Porn St atute” (2016) 16 Pitt J Tech L Pol’y 135 136; A Powell & N Henry Se xual Violence in a
Digital Age (2017) 132
5 Hall & Hearn Reve nge Pornography 14, 79
6 Merriam-Webste r “Definit ion of Pornog raphy” Merriam-Webster merriam-webster
com/dictiona ry/pornogra phy> (accessed 08-09-2020); LF Selt zer “What Disting uishes Erotica fr om
Pornography? ” (06-04-2011) Psyc holo gy To day
the-self/201104/what-distinguishes-erotica- pornography> (accessed 08-09-2020)
7 Anonymous “Cin dy to Sue over Nude Pictures” (15-08-2008) New Vision co ug/
new_vision/news/1183181/cindy-sue-nude-pict ures> (accessed 10-5-2018); BF Businge “Cindy’s Nude
Photos o n a D ating Site and a Youtube C lip” (08-11-2013) Howwe.Biz ps://www howwebi z/news/
celebrity/561/cindys-nu de-photos-on- a-dating-site -and-a-youtube- clip> (accessed 09- 05-2018)
8 B Kwesiga “Tooro Princess Rut h Komuntale Nude Pictu res Leak” (27-12-2013) Showbiz Uganda <htt p://
www showbizuganda com/tooro-princess-ruth-komuntale-nude-pictures-leak/> (accessed 10-05-2018)
9 S Ouga “D esire Luzin da apologises over leaked n ude images” (06 -11-2014) New Vision
www newvision co ug/new_vision/news/1314243/desire-luzinda-apologises-leaked-nude-images>
(accessed 09- 05-2018)
10 B Tabaire “It is the Season of ‘Celeb’ Nudity and Political Mean -Spiritednes s” (06 -11-2014) Da ily
Monitor monitor co u g/Magaz ines/Peo plePower/It-is-t he-seas on-of--cele b--nudit y-and-
political-/68984 4-2523254-format-xhtm l-wncewvz/in dex html> (accessed 0 9-05-2018)
11 Anonymou s “Mufti Mubajje Ca lls for D esire Luz inda Ar rest” (15-11-2014) Red Pepper
redpepper co ug/mufti-mubajje-calls-for-desire-luzinda-arrest/> (accessed 09-05-2018)
12 C Okoth “Desire Luz inda summoned by police” (09-11-2014) New Vision
new_vision/news/1314417/desire-luzinda-summoned-police> (accessed 09-05-2018)
13 IK O nyango “Desi re Luzi nda: is this t he end of her music car eer?” (08-11-2014) New Vision
www newvisio n co ug/new_vision/news/1314389/desire-luz inda-music-ca reer> (accessed 09- 05-2018)
94 STEL L LR 2021 1
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Mufti, went vi ral on social media. It was re ported that they ha d been released
by disgru ntled ex-lovers.14
Over the years , this trend h as continued u nabated, r aising fears t hat the
non-consen sual release of intima te images is slowly seeping in to mainstream
culture.15 In Ma rc h 2015 , at a me eti ng or gan is ed to ma rk Ug and a wom en’s da y
celebrations , three organisations , Unwanted Witness, the Women of Uganda
Network (“WOUGNET”), and the Collaboration on International Informa tion
Communica tions Technology (“ICT”) Policy in East and Southern Africa
(“CIPESA”), iss ued a cal l for “cyber policies to be put in place in Africa n
countrie s to protect women against violations of the ir digital r ights”, citing
NCII as the mai n violation.16 This call was reiterated in a 2016 report by
CIPESA which noted t hat, althoug h the distri bution of pornog raphy was
illegal in Ugand a, the law appea red to be targ eting victi ms of NCII rather
than the perpetrators.17 A 2020 study by ve organisat ions – Chapter Four,
CIPESA, the Defende rs Protect ion Initiat ive (“DPI”), Not your Body, and
Unwanted W itness – on t he nature of challenges faced by Ugandan wome n
who have an onlin e presence, highlight ed the following: The absence of l aws
designed to specic ally address the various forms of digital violence (such as
revenge pornography, trolling, and threat s) and the lack of sufcient domestic
reporting mech anisms exacerbate t hese challenges and often result i n many
women being forced to go ofine or resor ting to self-censorship.18
While the issue of NCII has be en raised by non-government organ isations
and commented on by the public,19 it is yet to be examine d by legal scholars
in Uganda. Around the world, however, NCII has been an alysed by legal
scholars. Their analyses provide a u seful background to u nderstanding t he
challenges faced in deali ng with this issue in Uganda . Stevens20 examines
the use of tort law as a remedy for NCII in Ca nada. He notes that Can adian
courts are at tempting to ensu re that tort law catches up w ith emerging
technologies which create new forms of doing old har ms, for example breach
of privacy. Uganda has similar tort laws and it is a rguable that court s need
to adopt the same approach. T his would avail protection to victim s of NCII
14 AA Baga la “Anti-porn Committe e to Probe Marth a Kay, Mufti’s Daug hter over Le aked Nudes”
(03- 06-2019) Daily Monitor co ug/ News/National/Anti-porn-committee-probe-
Martha-K ay-Mufti-s-d aughter/688334-5143384-10ilbm/index ht ml> (accessed 08-0 6-2019)
15 M Mu kisa, “Why Nu des and Sex Tapes ar e Here to Stay” (28- 04-2018) Daily Monitor
monitor co ug/ Magazines/Life/ Why-nudes--sex-ta pes-here-to-st ay-digital-store -morphology/689856-
4534914-146a1caz/index html> (accessed 0 9-05-2018)
16 E Nak kazi “R evenge Porn is Risi ng and it Should be Addr essed” (12-03-2015) Daily Monitor
www monitor co ug/ar tsculture/Reviews/Revenge-porn- -addressed/691232-2651158-x5o5r3/index
html> (accesse d 09-05-2018)
17 WOUGNET, AP C and CIPESA “Women’s R ights and the Internet in Ugand a” (March 2016) CIPESA
18 Chapter Four, CIPE SA, DPI, Not your Body, and Unwanted Witness “I n Search of Safe Spaces Onli ne: A
Research Summ ary” (March 2020) 1 CIPESA (accessed 01-04-2020)
19 P Nyamish ana “Non-Co nsensual Di ssemination of Intimat e Images a nd Unfair Laws – Uganda n
Women C aught in Between” (29-07-2019) GenderIT.Org gende rit org /feminist-t alk/
non-consensual-dissemination-intimate-images-and-unfair-laws-ugandan-women-caught> (accessed
01-08 -2019)
20 Y Stevens ‘‘‘Revenge Porn’, Tort Law, and Changing Socio-Technological Realities: A Commentary on
Doe 464533 v ND” (2017) 15 Canadian Jour nal of Law and Technolog y 337-349
A LAW AGAINST ONLINE DISTRIBUTION OF
NON-CONSENSUAL INTIMATE IMAGES
95
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