The Criminalization of Revenge Porn

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BY: Hope Robertson, Guest Contributor

Revenge Porn is a gross and heinous invasion of privacy, and should be criminalized by each state.  Revenge Porn, or involuntary/non-consensual pornography, is the posting of nude or explicit photos on the Internet in an effort to embarrass or harass the subject of the photo.  Often, photos are accompanied by crude descriptions and comments, names, Facebook addresses, LinkedIn addresses, and other personal information.  The inclusion of this information, along with the explicit photos, often leads to physical harassment of the subjects of the photos.  Viewers are able to find and contact the individuals in the photos, which leads to both real and cyber stalking.  A simple Google image search of a person’s name could bring up these photos, leading to exclusion from jobs and school admissions, as well as social humiliation.

Criminal codes across the nation should catch up with technology and culture by criminalizing Revenge Porn practices of both those who create the websites and those who post on the websites

As of July 16, 2015, twenty four states have laws addressing criminal charges against Revenge Porn posters and website hosts.  Some are broader than others, and most leave gaping holes for technicalities.  The current statutes vary on what categories legislators decided to categorize them under—everything from harassment and stalking to voyeurism and invasion of privacy.  Also, the anonymity allowed to those who post on these websites makes it almost impossible to prosecute, and website hosts are often hard to find.

Additionally, hosting a simple website that is mostly user-run makes it almost impossible to find any civil liability to impose on the website hosts.  Website URL hosts have been cleared of any civil liability under protection of § 230 of the Communications Decency Act.  Currently, all civil or criminal charges brought against defendants for Revenge Porn practices have been because they are engaged in other illegal activity, like soliciting photos and money under false pretenses.

With the advancement of the Internet and continued heightened sexualization of younger generations, Revenge Porn will never go away.  However, just like any other crime, making the act illegal will hopefully deter both the posters and the website hosts.  Some will start to balance the satisfaction gained from posting the photos against criminal punishment and a criminal record, and decide posting these photos is not worth it.  Unlike consensual pornography, the only goal of posting Revenge Porn is to humiliate and harass the subject.  It is the cyber equivalent of sexual harassment and stalking, which are already illegal.  Photos on the Internet never go away; thus focusing efforts towards liability only after photos are posted should not be the ultimate goal.  Legislation should work towards deterring people from posting the photos and hosting these websites in the first place.  Criminal codes across the nation should catch up with technology and culture by criminalizing Revenge Porn practices of both those who create the websites and those who post on the websites.

To find the most favorable Revenge Porn criminalization statute, this article will analyze the revenge porn statutes in place in Maryland, California, and Virginia.  Maryland was one of the earliest revenge porn statutes to be codified and is one that categorized Revenge Porn under their harassment and stalking laws, which is the category where Revenge Porn fits best. California had the first criminal conviction of a Revenge Porn website host under its Revenge Porn statute.  Virginia’s statute has effectively charged people for posting revenge porn, and might show to be very effective addressing that issue.  This article will then address the main issue with Revenge Porn criminalization statutes: free speech and the first amendment.  Finally, this article will analyze other routes of recovery for victims including federal charges, state tort law, and copyright law, and how they are not enough to solve the ultimate issues.

Current Revenge Porn Statutes

Maryland was one of the first states to have an official “Revenge Porn” law enacted it its criminal code.  It is included with other laws under the heading of “Stalking and Harassment.” Although the law criminalizes uploading revenge porn by an individual who knowingly did not receive consent to publish the video, the law specifically excludes “interactive computer services” from liability.  Under 47 U.S.C. § 230(f)(2), the term “interactive computer service” is defined as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.” This means that providers like Google Chrome, Safari, and Internet Explorer are not liable for websites that can be accessed on their servers.

This statute on its face seems like a sufficient way to solve the problem . . . However, the Maryland statute has a few problems

The Maryland statute aims to punish those who post Revenge Porn by criminalizing the act of posting photos (that fit the definition) with the intent to cause severe emotional distress, knowing that the victim of the photo did not consent, and the victim would subjectively believe the images would be kept private.  This statute covers a substantial amount of Revenge Porn incidents.  The only purpose of posting on a Revenge Porn website is to intentionally cause emotional distress to the victim because they are posting photos that the victim assumed would be kept private and doing so without their consent. This statute on its face seems like a sufficient way to solve the problem—criminalize the activity of posting the photos thus deter people from doing it.  However, the Maryland statute has a few problems.

First, Maryland’s statute does not address or criminalize the production of the website itself.  It does not go for the root of the problem, but merely the aftermath of posting the photos.  The statute should also ideally include the criminalization of producing websites solely for the purpose of Revenge Porn.  However, some believe that just like “interactive computer services,” the website itself can assert federal immunity under § 230 of the federal Communications Decency Act.  The court has yet to answer this question, however, because sites are being taken down for other reasons besides being a Revenge Porn site.

Some believe that because the website owner is only setting up the website, that they are not participating in the creation of Revenge Porn, and that they are only providing the space for their users to do whatever they want. The users and posters are the ones deciding to post the pictures, comments, and descriptions, while the website creator just pays for the URL. If users did not want to post Revenge Porn, they do not have to, and can choose to not use the site as it is intended. However, in a Google search for “myex.com,” the title of the link states: “MyEx.com Get Revenge! Naked Pics of Your Ex.”  That tag was specifically created by the owner and creator of the website clearly advertising what the website is for, how it is supposed to be used, and what can be found on it.  Allowing website creators to hide under this exception is nonsensical and dangerous.  The owner might not be creating the Revenge Porn, but they are providing the means thus they are the equivalent to an accessory to a crime.  Therefore, the Maryland statute should include a revision that punishes the creator as well as the users. However, there could be an issue with finding the creator to impose liability, although this could be remedy after the fact via IP address tracking.

Another problem with the statute is it is largely ineffective for websites like myex.com and others that allow the poster to remain anonymous.  The content might be there, and all of the elements might be fulfilled, but a majority of websites dedicated to hosting Revenge Porn hide the user’s name and any identifying factors.  Unfortunately, too often the automatic response to this problem is assuming the victims should know who they send what photos to, putting the responsibility and blame back on them instead of requiring the websites to keep track of who posts on their sites.  Even if that were the case and victims knew who had those specific pictures, it does not always solve the problem.  As soon as the original pictures are posted, the pictures have already been on the Internet long enough for other people to download them or screenshot them.  A visitor to myex.com might see pictures of someone they know, not necessarily someone he has had a sexual relationship with, and copy those pictures to post to a different site.  This same scenario often happens when websites are taken down or victims request pictures be removed under DMCA.  Again, the issues come from the pictures being posted in the first place and what happens after.

California’s statute seems to be a closer example of what a Revenge Porn statute should ideally be

California has also created a Revenge Porn statute found under “Disorderly Conduct” in their penal code.  Under this statute, Kevin Bollaert became the first person to be criminally convicted for hosting a Revenge Porn website.  He was found guilty of 27 counts of identity theft and extortion.  He ran a Revenge Porn website posting nude photos of women along with personal information.  He also ran a website which advertised on his Revenge Porn website claiming that he would accept upwards of $350 per photo to take the photos off of the website and erase the information.  He faces up to 20 years in prison.  He was not the first person to be convicted under the statute.  About a year earlier, another man was sentenced to a year in prison for posting a nude picture of his ex-girlfriend on her employer’s Facebook page.

California’s statute seems to be a closer example of what a Revenge Porn statute should ideally be.  It has the ability to go after both those who post on the website, as well as the website creators.  People who post to Revenge Porn sites are mostly covered under § 647(a) and website hosts are covered under § 647(b).  In Bollaert’s case, he was effectively distributing the photos, as well as handling requests and subsequently arranging a way for the photos to be posted.

California’s statute is also successful because it does not differentiate based on who took the photo.  The Virginia Revenge Porn statute (discussed in depth below) only criminalizes when the person posting the photo is the one who took the photo, and does not protect victims who take the photos themselves and send them to another person.  The California statute is better in this regard because no matter who took the photo, the damage of the photo being posted is the same.  In fact, almost eighty percent of Revenge Porn photos are taken by the victim herself and then sent to someone else.

California’s Revenge Porn statute does fail in a few areas.  For instance, it does not address jurisdiction.  An offender can easily find a loophole in the statute by claiming that the photo was not taken in California, that the victim in the photo does not live in California, or that the person posting the photo does not live in California.  For a Revenge Porn statute to be more effective, it should address jurisdiction and allow for prosecution of the offender however he is involved with California, whether it be the location of the photo, where the photo is posted, or where either party lives.

Currently, only Hawaii’s criminal Revenge Porn statute calls for the destruction of the photos after finding violation of the law

Additionally, an effective Revenge Porn law would ideally call for the destruction of the photos (as much destruction as there can be) when someone violates the law. Currently, only Hawaii’s criminal Revenge Porn statute calls for the destruction of the photos after finding violation of the law.  The real harm and danger of these photos comes after the photos are posted. They can show up in Google searches and can be found readily by employers and schools.  What most victims of Revenge Porn want the most is the ability to destroy the photos and delete them from the Internet.  This might be impossible, but the criminal statutes should still attempt to require the removal of the photos.

A few Revenge Porn statues, like Hawaii’s, fail in terms of the word “consent” and what it modifies in the statute.  A plain reading of Hawaii’s statute seems to only protect victims when they do not consent to the actual taking of the photos. The statutes protect victims of hidden cameras, but do not protect victims when they consent to the taking of the photo.  The more successful criminal Revenge Porn statutes make sure to protect victims of both nonconsensual taking of the photos, and nonconsensual posting of the photos.  For most states, taking nonconsensual photos and posting them is already illegal under stalking or voyeurism statutes. An effective Revenge Porn statute needs to protect victims who take their own photos, consent to others taking photos of them, but then do not consent to the posting and distributing of the photos.

The Virginia statute should effectively deal with those posting Revenge Porn photos, however, courts might find difficulty in establishing the ‘extra’ elements associated with the statute

On July 1, 2014, Virginia enacted its version of a Revenge Porn statute under its crime involving morals and decency section, in the article labeled “Obscenity and Related Offenses.” Shortly after this statute became effective, two people were charged with violating the statute. The first was a man who posted a nude photo of his ex-girlfriend on Facebook.  The second was a woman who got mad at her boyfriend, went on his phone and found a nude photo of his ex, and posted the photo online.  The charge carries up to one year in jail, a $2,500 fine, or both.  The Virginia statute should effectively deal with those posting Revenge Porn photos, however, courts might find difficulty in establishing the ‘extra’ elements associated with the statute.

First, the court has to prove that the person had the intent to coerce, harass, or intimidate, instead of that someone was coerced, harassed, or intimidated.  While in some instances this might be easy to intuit (the woman posting the picture of her boyfriend’s ex), some defendants will likely claim they did not have this intent, but rather wanted to show off, get attention, or thought it was a joke.  This will be more of an issue with reddit-like and other file sharing websites, and less with websites that have a clear message of “Get Your Revenge.”  Under this statute, if someone posts a nude photo on a website like that, it should be easier to find intent to coerce, harass, or intimidate.

Second, the court has to prove that the photo was “maliciously” disseminated or sold, and not just disseminated or sold.  This means that not only does the defendant have to have the intent to do harm; they must also have a malicious mental state when they post or sell the photo. While it is hard to imagine a scenario where the court would find intent to harm without malicious dissemination or sell, the statute leaves open this opportunity.  For example, a defendant could argue that he wanted to harass his ex by posting the picture, but when he actually posted it he was intoxicated.  Alternatively, a defendant could argue that he had the intent to harass his ex but somehow accidentally posted the photo.  Both of these situations could allow the defendant to argue that he did not maliciously disseminate the photo because he did not have malice.  Virginia should not have added extra elements to the statute; however future case law might prove these to be non-issues.

Revenge Porn and Free Speech

A major concern with criminalizing Revenge Porn is the criminalization and infringement of free speech. Criminalizing Revenge Porn would inherently restrict speech. When a law is made that restricts free speech, the government must have a compelling interest to restrict the speech, and the law must be narrowly tailored to restrict only that speech. Groups like the ACLU have expressed major concerns with criminalizing Revenge Porn because of the infringement on free speech. On July 10, 2015 ACLU was successful in stopping Arizona’s revenge porn laws due to First Amendment violations.

Part of the concern comes from the fact that some statutes do not require identification of victims, so there is no identifiable harm.  Also, some statutes only require the harm to be emotional distress, and some states do not allow a victim to recover only under emotional distress, instead she must prove other harms like the loss of a job because of the photo.  Others have expressed concern over whether the government has an interest in restricting Revenge Porn speech.

Laws prohibiting Revenge Porn fall under the time, place, and manner exception to the First Amendment and do not violate free speech

Laws prohibiting Revenge Porn fall under the time, place, and manner exception to the First Amendment and do not violate free speech.  The posting of nude photos and the writing surrounding the content are two different free speech analyses.  The photos are not protected under the First Amendment, while the writing surrounding the photos (usually) is protected.

The posting of photos on a website is not pure speech; it is conduct. The United States Supreme Court has stated that there is not a “limitless variety of conduct [that] can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.”  Therefore, the court must analyze whether the conduct is expressive.  To be expressive conduct, the speaker must intend to communicate something, and the audience must understand the message the speaker is intending to communicate.  In this case, the speaker is intending to communicate certain things about his/her ex by posting these photos (the ex wronged the speaker in some way to make the speaker want revenge) and the audience understands this is the message the speaker is intending to send.  This makes the posting of photos qualify as expressive conduct, and the “Court has held that when ‘speech’ and ‘nonspeech’ (conduct) elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment Freedoms.”

The government’s best interest and the most effective solution is to criminalize the activity

There are sufficient government interests in regulating Revenge Porn posts on the Internet that are unrelated to the suppression of speech.  First, Revenge Porn harms society because it negatively affects the economy.  The posts remove capable workers from the job force because their employers will likely Google a potential employee’s name and choose not to hire that employee because of the photos.  Revenge Porn also causes a psychological burden on society because of the damaging mental effects it has on victims.  Revenge Porn also has damaging effects on the construction of society.  In an interview, Revenge Porn website host Craig Brittain stated that his “eventual goal is that everyone will have public information posted about them, preferably naked, that it’ll be a normal thing. It’ll no longer be associated with stigma or shame or humiliation, but it will be normal, in about ten years.”

This kind of “normalcy” Brittain is hoping for is not good for society.  It will negatively affect sexual and intimate relationships, as well as platonic relationships; people will act differently if they know everyone, including employers, co-workers, and friends, has seen them naked or engaging in sexual activity.  Revenge Porn websites “devoted … to demeaning, harassing and humiliating individuals … surely threaten … the ‘moral ecology’ of society.”  Society cannot afford this type of change, and “criminalizing Revenge Porn ‘would deter damaging privacy invasions and send the powerful message that posting someone’s most private moments, most often in a breach of their trust and without their permission, is unacceptable.”

Lastly, there is a strong government interest in the regulation of Revenge Porn because it is sexual exploitation, and can lead to other criminal activity.  Revenge Porn turns “unwilling individuals into sexual entertainment for strangers” and often leads to actual threats and actions against victims. Because it is so easy to find the victims posted, they often receive threats of rape, sexual assault, and death, and some follow through with those threats.  Victims are also harassed and stalked both online and in person.  A goal of criminal law is to prevent victimization before the need for compensation arises.  The need for compensation to victims is continuously arising every time a new photo is posted.  The government’s best interest and the most effective solution is to criminalize the activity.

A law criminalizing Revenge Porn would then need to be narrowly tailored to accomplish those government interests, and the regulation has to leave open ample alternative means for communicating messages.  Current Revenge Porn statutes do leave open other means for communicating the same message.  People would still have the ability to show the photos to people, perhaps even send them directly to other individuals.  Also, people will be able to convey the same message they aim to convey by oral communication and written communication.  There is nothing stopping those who want to say what they want about their exes in public and on the Internet and can convey the same message without the photos that they want to achieve with the photos.  A statute criminalizing nonconsensual pornography does not chill speech because the posters can still communicate their message without the photos. Revenge Porn statues will be found Constitutional.

Revenge Porn and Civil Liability

In late January 2015, Craig Brittain signed a consent order with the FTC for violating § 5(a) of the Federal Trade Commission Act.  Craig Brittain elicited naked photos from women on Craigslist by trading nude photos and pretending he wanted to “hook up” with them.  Instead, he posted these photos on a website (isanybodydown.com) along with personal information without the women’s knowledge or consent.  People could comment on photos and Brittain would offer money if others could get more photos.  He also posed as a fake law firm on his own website advertising that he would help get the photos taken down.  The FTC charged him with actions that constitute unfair or deceptive acts or practices in or affecting commerce.  The FTC has barred Brittain from posting nude images of women to his website without their consent.  The website has been taken down and Brittain was forced to destroy the images he had.  Normally, his website would be protected from liability by the Communication Decency Act, just like GoDaddy.com and Google Chrome are, but he was found to violate trade practices because he solicited the photos under false pretenses and pretended to be a law firm and earned money by advertising he would take the pictures down if victims paid his fake law firm.

Currently, there is no federal law against Revenge Porn

An ideal Revenge Porn criminalization state statute would include this kind of sanction against website creators.  People like Kevin Bollaert should not only face criminal punishment (imprisonment and/or fines) but should also be forced to destroy the website and all of its content. Because states cannot outlaw private collections of pornography, forcing Revenge Porn posers to destroy all of their photos would probably be found to be unconstitutional, however forcing website creators to destroy the images should help with the problem of users simply re-posting the images. Also, the threat of criminal charges along with civil liability should help deter people from creating the websites in the first place.

Currently, there is no federal law against Revenge Porn. The closest federal law victims can assert is 47 U.S.C. § 223 under the federal telecommunications statute aimed at punishing cyberstalking.  The law “prohibits individuals from using any telecommunications to abuse, threaten, or harass any person without revealing their identity.”  This is a viable option because it does not allow websites to hide behind their Communications Decency Act immunity.  However, just like most civil litigation, the process is lengthy and expensive.  Most states also have cyber harassment statutes, but usually to satisfy the elements of those statutes, victims have to establish a pattern of harassment and abuse and that a reasonable person would suffer substantial emotional distress.

Tortious Invasion of Privacy and Public Disclosure of Private Facts

The civil tort of invasion of privacy by public disclosure of private facts is a possible remedy for victims of Revenge Porn.  To commit the tort of public disclosure of private facts, there has to be public disclosure, the facts disclosed must be private facts, and the “matter made public must be one which would be offensive and objectionable to a reasonable person of ordinary sensibilities.”¹

Tortious invasion of privacy can be a remedy to some victims, but the cause of action leaves many possibilities of non-recovery and issues not resolved

First, public disclosure is not just distribution to one person, or even a small group of people (although with today’s technology and ease of communication, one person is enough).² For a fact or a picture to qualify as public disclosure, it must be communicated to the public at large, “or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.”³ Second, the facts must be both subjectively and objectively private. This means that the person “must demonstrate that they actually expected the disclosed facts to remain private, and that society would recognize this expectation of privacy as reasonable and be willing to respect it.”⁴ Third, there has to be an element of emotional distress and embarrassment surrounding the facts that a reasonable person would experience. These are not facts of a casual observation by a neighbor, or daily activities that can be observed by the public; “it is only when the publicity given to [her] is such that a reasonable person would feel justified in feeling seriously aggrieved by it.”⁵

Tortious invasion of privacy can be a remedy to some victims, but the cause of action leaves many possibilities of non-recovery and issues not resolved.  First, it might be hard to establish the second element of the tort, that the facts are objectively and subjectively private, and the third element that a person has a reasonable expectation of privacy in photos she shares with other people.  A court could find that because the person took the pictures and then sent them that she has lost her expectation of privacy; however this is a flawed analysis.  The contexts in which photos are usually shared are between people in a trusting relationship and are meant to be a part of that relationship. Just like couples have an expectation of privacy in their private, sexual relationship, individuals as part of an intimate relationship should have an expectation of privacy in the private, sexual things they share with the other person in that relationship.

More importantly, the sharing of a picture with one person, or even a few people, does not automatically eliminate the person’s expectation of privacy in that picture and introduce an expectation that the photo will be shared on the Internet.  Perhaps if the court would recognize that a person has a subjective and objective expectation of privacy in nude or explicit photos shared between people in a relationship, it would be an effective action against the person posting the photos.  However, along with issues surrounding convincing a jury that she had an expectation of privacy; damages would be difficult to calculate.  Also, this tort does not address the actual websites at all, and does not do anything to get the pictures taken down or go after the website hosts who encouraged and allowed the pictures to be posted.

Revenge Porn and why copyright law is not enough

An additional resource victims of Revenge Porn can assert is their rights under Digital Millennium Communications Act.  If the photo was taken by the person in the photo, the victim owns the copyright of the photo and can send a notice to the website to take it down.  If the website refuses to take the photo down, the victim can go after the website for copyright infringement.  However, to do this, the victim must register the copyright of the photo within 90 days of the website publishing the photo.  Even if they are able to do that, victims rarely receive any kind of damages.  The photo is taken down at least.  While this is an effective way to have certain photos removed, even if the victim is able to register the copyright within 90 days, there is a high probability that the photo will just end up being posted somewhere else on another website, and it does not discourage website creators or posters from engaging in Revenge Porn activities.  It also does not provide any protection for photos not taken by the victims themselves. Although this is only for statutory damages, some of the current revenge porn websites requires copyright ownership of the photos before they will take the photo off of the site.  So not only does copyright law not provide ample compensation, it makes it close to impossible to get the photos taken down off of the site when a victim finds out her photos have been posted.

Conclusion

All states need to adopt statutes to criminalize Revenge Porn.  It is a severe invasion of privacy, as well as criminal abuse and harassment. An ideal Revenge Porn criminalization statute would include the ability to punish both website creators and those who post on the sites.  It would include punishment for photos taken with and without consent, and would not differentiate between who took the photo.  It would include definitions of what is and is not considered obscene Revenge Porn, not making the statute too broad or too narrow.  It would also close any loopholes in regards to jurisdiction.  It would be based on objective intent and not subjective intent, as well as actual and potential harm. It would also provide the ability to force website owners to destroy the material on their website.

Hope Robertson is a rising 3L student at Campbell Law School.  She can be reached at ha*************@em***.edu .