There is currently no federal law regulating the distribution of revenge porn, also known as nonconsensual pornography (NCP). The Cyber Civil Rights Initiative has created a model for what the federal government could eventually adopt. The model essentially lays out that if a person knowingly distributes sexually explicit material about another person, knowing they did not have consent to do so, they will be fined, serve prison time, or both. The model also provides exceptions such as immunity when the explicit material is obtained during a lawful commercial setting, or disclosures made in the public interest (e.g. for criminal reporting, legal proceedings, or medical treatment). Finally, the model provides immunity to service providers who have unknowingly become involved in NCP merely through the nature of their business.

27 states have adopted statutes to combat the recent increase in revenge porn incidents. Eleven of the statutes have created crimes that can result in a potential felony charge, while the rest would be misdemeanors. Examples of the felony charges include unlawful distribution of images depicting states of nudity, violation of privacy, sexual cyberharassment, and video voyeurism, among others. Offenses classed as a misdemeanor include posting a private image for harassment, invasion of privacy, stalking and harassment, distribution of intimate images without or against consent, and representations depicting nudity, among others.

In addition to possible criminal penalties, a victim can often bring a civil action against a person who has posted distributed explicit materials without their consent. The claims would likely stem from copyright infringement (discussed below) or invasion of privacy. Due to certain statutory limitations, owners and operators of sites that do not retain strict control of the content posted to their sites will likely not be held responsible.

Alternative Means of Protection/Response

Criminal and civil proceedings can be very draining on a victim and therefore not everyone will choose to go that route; however, there are other options out there.

If you personally have taken a photo or video, then you own the copyright to that photo or video. Because you own the copyright, you can submit a Digital Millennium Copyright Act takedown (DCMA takedown), which is simply when content is removed from a website at the request of the owner of the copyright. To execute a DCMA takedown you (1) must be the copyright owner, (2) provide the original version of the work, and (3) explain where the infringement is occurring.

Another alternative would be to contact Google personally and request that they remove the content. Google has stated that they will comply with a person’s request to remove revenge porn from the search engine. Additionally, you can take personal action through search engine optimization to bury the images that you wish people do not see. By taking things into your own hands you can control what personal content people see when they search your name.

Conclusion

Nonconsensual exposure of pornographic content is rapidly becoming a major issue through the entire country. With it being such a new trend, government and law enforcement are behind the curve in controlling this outbreak, but they are working to fix that. Over half of U.S. states have created laws to penalize revenge porn posters and more legislation is on the way.

For more information about the privacy and how to respond to revenge porn contact Revision Legal’s team of experienced internet privacy attorneys through this form or call 855-473-8474.

Image courtesy of Flickr user Adam Kuśmierz

Federal Law: Where Things Stand and Where They Are Heading

The absence of a federal revenge porn statute is not an oversight — it reflects genuine legal disagreement about how to craft a law that criminalizes harmful intimate image sharing without running afoul of the First Amendment. Critics of proposed federal legislation, including the Stopping Harmful Image Exploitation and Limiting Distribution (SHIELD) Act, have argued that overly broad statutes could sweep in protected speech or chill legitimate content. Supporters counter that nonconsensual intimate image distribution causes documented, severe harm — lost employment, depression, suicide — and that the First Amendment has never protected speech that is used as a tool of sexual harassment and coercion.

While the federal legislative debate continues, several federal statutes already provide partial remedies in revenge porn cases. Section 2261A of Title 18 (cyberstalking) can reach revenge porn when the distribution is part of a course of harassing conduct. The Computer Fraud and Abuse Act may apply when intimate images are obtained by unauthorized access to the victim’s devices or accounts. And the Violence Against Women Act has been used to support federal prosecutions in cases involving interstate transmission of threats.

State Criminal Laws: What the Statutes Actually Say

State revenge porn statutes vary considerably in their elements, penalties, and defenses. Understanding those differences is critical when advising a victim on their options:

• Consent element. Most statutes require proof that the distribution was made without the depicted person’s consent. Some go further and require proof that the defendant knew the person had not consented. That knowledge requirement can be difficult to establish when the defendant claims he or she believed the images were shared voluntarily.
• Intent element. Some states require proof that the defendant acted with intent to harass, alarm, or distress the victim. Others — taking a more protective approach — require only that the distribution was knowing and nonconsensual, regardless of motive. States that require a specific intent to harass make prosecution harder when the defendant claims the images were shared for other reasons (e.g., bragging to friends).
• Reasonable expectation of privacy. Most statutes require that the depicted person had a reasonable expectation that the images would remain private. Images taken in private settings with a partner generally satisfy this element. Images where the depicted person consented to wide distribution — even if later regretted — may not.
• Platform liability. Section 230 of the Communications Decency Act, 47 U.S.C. § 230, generally immunizes online platforms from liability for user-generated content. This means that even if a website specializes in hosting nonconsensual intimate images, the website operator typically cannot be held criminally or civilly liable under state law for hosting the content. However, this immunity has limits — platforms that materially contribute to the illegality of the content may lose Section 230 protection, and the FOSTA-SESTA amendments carved out an exception for platforms facilitating sex trafficking.

Civil Remedies: Building a Case Outside the Criminal System

Criminal prosecution depends on the discretion of law enforcement and prosecutors, and many victims find that local prosecutors decline to bring charges — either because the conduct falls below the priority threshold or because the evidence is challenging. Civil litigation gives victims direct control over their case and can result in injunctive relief, compensatory damages, and punitive damages in appropriate circumstances.

The most powerful civil theory available in revenge porn cases is often copyright. Under 17 U.S.C. § 501, the owner of a copyright in a work has the exclusive right to reproduce and distribute it. When a person takes a photograph or video of themselves, or directs a partner to do so, the person behind the camera typically owns the copyright in the image. A former partner who distributes that image without authorization infringes the copyright. Importantly, registration of the copyright is a prerequisite to filing suit for statutory damages under 17 U.S.C. § 412 — and statutory damages can be significant, ranging from $750 to $30,000 per infringed work, and up to $150,000 per work if the infringement was willful. Victims who act quickly to register their copyrights before filing suit preserve access to these larger damage awards.

Beyond copyright, victims may pursue claims for:

• Public disclosure of private facts. This tort requires proof that the defendant publicized private information that a reasonable person would find highly offensive, and that there was no legitimate public concern in the disclosure. Intimate images shared without consent fit this tort squarely.
• Intentional infliction of emotional distress. Where the defendant’s conduct was extreme and outrageous — for example, distributing images to the victim’s employer or family — IIED claims can succeed and support significant compensatory and punitive damage awards.
• Intrusion upon seclusion. If the defendant obtained the images through unauthorized access to the victim’s devices, accounts, or physical space, this privacy tort applies.

Takedown and Suppression Strategies

Civil and criminal proceedings take time. In the interim, victims need the images removed from circulation as quickly as possible. Effective immediate strategies include:

• DMCA takedown notices. If the victim owns the copyright in the images, a properly drafted DMCA takedown notice under 17 U.S.C. § 512(c)(3) requires the hosting platform to remove the content expeditiously or lose its safe harbor protection. These notices can be effective against platforms that are responsive to legal process. They are less effective against platforms located in jurisdictions that do not honor DMCA process.
• Google de-indexing requests. Google’s search engine removal tools allow victims to request de-indexing of URLs containing nonconsensual intimate images. De-indexing does not remove the content from the hosting server, but it substantially reduces discoverability.
• Emergency injunctive relief. Where a civil case is filed, victims can seek a temporary restraining order or preliminary injunction requiring the defendant to remove and cease distributing the images while the case is pending. Courts have granted TROs in revenge porn cases where the harm to the plaintiff was immediate and severe.

Talk to an Attorney

If you are a victim of nonconsensual intimate image distribution, the response strategy matters enormously. Acting quickly to register copyrights, issue takedown notices, and preserve evidence of distribution can dramatically improve your legal position. The internet attorneys at Revision Legal handle revenge porn cases with the sensitivity and urgency they demand. Contact us through the form on this page or call 855-473-8474.