With sexting on the rise among teens (with other teens) and adults (with other adults), and opportunities for real-life interactions somewhat limited by the Coronavirus pandemic, the chances that sexually explicit words or images could end up in front of someone unintended also increase significantly.

But would you insist on the other person (or people) signing a legally enforceable non-disclosure agreement before you start?

E-gree, an iOS and Android app that allows people to form binding contracts between people without a lawyer, certainly thinks putting an agreement in place is the safest way to try and keep your sexts private. And don’t go thinking these are informal agreements (which the company calls e-greements) that people can just agree to willy nilly.

“If a party asks a Court to enforce the provisions of the Sexting e-greement, the court will be obligated to look for a number of elements to satisfy itself that a valid and enforceable contract exists,” Keith Fraser, Chief Legal Officer at E-gree, told SEXTECHGUIDE.

Generally, the required elements are Offer, Acceptance, and Consideration, as well as Capacity of the Parties, Lawfulness of the Subject Matter, Free Consent, Certainty of the Material Terms, and Mutual Assent.

“Like most well-crafted written contracts, the E-gree Sexting agreement expressly sets forth language to satisfy the offer, acceptance and consideration elements. The other elements may require a Court to analyze not just the written contract but also the circumstances surrounding the negotiation, creation and execution of the contact as well as conduct of the parties.”

Within the E-gree App, evidence for these elements are recorded, and accessible to a Court. should the need arise. The app’s registration process ensures that users’ electronic signatures and the dates and times of these signatures can be readily verified.

E-gree says that the sexting contract is legally enforceable in most parts of the world, and isn’t focused on one specific country. Many countries allow people to form contracts that cover personal property and rights, and to form written contracts between private individuals.

However, even then, there are still differences in legal requirements for enforcing contracts in different countries, but the company says that it makes small changes to the agreements, where geographically necessary, to ensure they remain enforceable.

“The E-gree App will take into consideration minor differences in applicable law depending on the location of the parties and will include in the final e-greement any necessary additional clauses or information to ensure compliance with any particular requirements of that jurisdiction,” Fraser says.

Good, in theory?

For some people, the idea of signing an NDA before sexting could well be a bit off-putting, but some may find comfort in the notion. However, statistically, the group that sexts the most often and are more likely to share their sexts with other people (some 44% of teens say that explicit texts are regularly shared with people other than the recipient), and needs the most protection, are teens, which aren’t allowed to use the app, as you need to be over 18.

In the UK, minors (people under the age of 18, in this definition) can enter into contracts between the ages of 7 and 18 years, but there are very few that are legally enforceable (those for ‘necessaries’ – food, clothing, accommodation are binding, most others are not). As a result, any contract signed for non-necessaries can be revoked at any time, for any reason, by a minor before they reach the age of 18 (and indeed, for a short while after passing this threshold). So, even if people under the age of 18 were allowed to use the app, the agreements wouldn’t mean anything anyway.

A study conducted by psychologists at Drexel University, Philadelphia, found that up to 88 percent of adults reported sexting with a partner (either text or images). A Kinsey Institute report from 2019 found that nearly a quarter of adults who receive provocative photo messages end up sharing them with an average of three other people.

Adults (those over the age of 18, for this definition), on the other hand, are bound by the terms of these contracts and agreements – but are statistically far less likely to show or forward sexting conversations to other people. Nonetheless, having discussions about what is acceptable, and getting explicit consent, is essential when it relates to sex.

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