Revision Legal attorney John Di Giacomo testified before the Michigan Senate Judiciary Committee on SB 524 and SB 525, legislation intended to criminalize ‘revenge porn’—the nonconsensual distribution of intimate images. The testimony offered support for the legislature’s intent while raising significant concerns about the bill’s constitutional durability and practical enforceability, and advocated for a more robust civil remedy as a complement or alternative.
Nonconsensual disclosure of intimate images is a serious harm. Victims whose explicit photographs are posted online without consent suffer devastating emotional, professional, and social consequences. The images spread rapidly across aggregator sites, adult content platforms, and search engine indexes, making removal both legally complex and technically challenging. Victims often face a difficult choice: pursue removal through a combination of copyright law, platform reporting policies, and cease-and-desist letters, or pursue criminal prosecution against the poster.
The difficulty is that criminal prosecution often fails to address the distribution problem. Even if a perpetrator is arrested and prosecuted, the images remain online. And law enforcement agencies, while well-intentioned, often lack the technical resources and digital forensics capability to effectively investigate and prosecute these cases.
Attorney Di Giacomo’s testimony expressed support for the legislature’s efforts while raising three significant concerns:
Criminalizing the distribution of sexually explicit images—even nonconsensual distribution—implicates the First Amendment’s protection of speech. The intersection of criminal law and speech regulation is an area where courts apply heightened scrutiny, and statutes that are drafted too broadly, or that do not adequately account for contexts where distribution might be constitutionally protected, are vulnerable to First Amendment challenge. Several revenge porn statutes enacted in other states were subsequently struck down on First Amendment grounds before being revised.
Even with the best-drafted criminal statute, enforcement depends on police departments and prosecutors who have the technical knowledge to investigate digital offenses and the bandwidth to prioritize them. Law enforcement agencies face competing demands, and internet-based crimes frequently require specialized resources that many agencies lack. A criminal statute that is rarely enforced because of resource constraints provides victims with little practical relief.
The testimony’s primary recommendation was that the legislature consider a robust civil remedy as the primary enforcement mechanism. A civil cause of action with fee-shifting provisions—modeled on the Michigan Consumer Protection Act—would create a financial incentive for private attorneys to take these cases without requiring victims to rely on the state’s prosecution resources. Victims often cannot afford to pay hourly legal fees, but a fee-shifting provision that allows recovery of attorney’s fees from a prevailing defendant changes the economics entirely.
Michigan subsequently enacted MCL § 750.145e, which criminalizes the intentional disclosure of sexually explicit images without consent and with intent to harm the depicted person. A separate civil cause of action was also created, allowing victims to sue for actual damages, punitive damages, and attorney’s fees. These provisions together represent a more comprehensive approach than the original bills, addressing both the criminal and civil dimensions of the harm.
At the federal level, the SHIELD Act (Stopping Harmful Image Exploitation and Limiting Distribution) was enacted as part of the Violence Against Women Act reauthorization, creating a federal civil cause of action for nonconsensual disclosure of intimate images. The federal statute complements state law by providing an additional enforcement mechanism and ensuring that internet platforms that operate across state lines are subject to liability.
For victims of nonconsensual image distribution, the legal strategy typically involves multiple simultaneous actions:
Revision Legal regularly assists victims of nonconsensual image distribution in pursuing removal and legal remedies. If your intimate images have been published without your consent, contact us immediately. Time matters—the sooner legal action begins, the more effectively the spread of the images can be controlled.
Since John Di Giacomo’s 2013 testimony before the Michigan Senate Judiciary Committee, both federal and state law have advanced significantly. The Violence Against Women Act Reauthorization Act of 2022 included the SHIELD Act (Stopping Harmful Image Exploitation and Limiting Distribution Act), which for the first time created a federal civil cause of action for nonconsensual disclosure of intimate images. The SHIELD Act provides victims with the ability to sue in federal court without needing diversity of citizenship, access to injunctive relief, and damages including attorney’s fees.
The federal civil remedy addresses one of the key concerns raised in the 2013 testimony: that criminal prosecution depends on police and prosecutorial resources that are frequently unavailable. A federal civil cause of action places enforcement in the hands of the victim and their private attorney, ensuring that action can be taken regardless of law enforcement priorities.
The First Amendment concerns raised in the testimony have been tested in courts across the country. Early revenge porn statutes in several states were struck down for being overbroad—they prohibited disclosure of intimate images in contexts that might involve legitimate speech, such as journalism or political commentary, without requiring that the disclosure be nonconsensual or made with intent to harm.
The current generation of revenge porn statutes, including Michigan’s and the federal SHIELD Act, have been more carefully drafted to include the specific elements that satisfy constitutional scrutiny: the disclosure must be of intimate content, it must be nonconsensual, and in many statutes it must be made with intent to harm or harass the depicted person. Courts that have reviewed these refined statutes have generally upheld them against First Amendment challenges, finding that the interests in protecting individuals from nonconsensual intimate image abuse outweigh the marginal speech interests of those who would non-consensually distribute such images.
The technical complexity of removal—which Di Giacomo identified in 2013 as a central challenge—remains the hardest problem in this area. While legal tools have improved significantly, the internet’s architecture makes complete removal of widely distributed content very difficult. Several dynamics make this particularly challenging:
The practical response to these challenges requires a layered strategy: rapid takedown notices to hosting platforms, DMCA-based removal where copyright ownership exists, search engine de-indexing requests, and where necessary, emergency injunctive relief against identified perpetrators. Revision Legal has developed systematic workflows for this type of multi-platform removal campaign.
John Di Giacomo and Revision Legal’s internet attorneys continue to represent revenge porn victims in removal proceedings and civil litigation. If your intimate images have been published without your consent, contact us immediately. Every hour of delay increases the difficulty of containing the distribution.
Facebook agreed to pay $550 million to settle a class action lawsuit under Illinois’ Biometric Information Privacy Act. Here’s what the case means for biometric data law.
Read more about Facebook’s $550M Illinois Biometric Settlement
Seizing an infringer’s domain name is one of the most effective ways to stop IP theft online. Here’s how courts order domain transfers and what rights holders need to show.
Read more about Seizing an Infringer’s Domain to Stop Infringement
Recent court decisions on what counts as an ‘autodialer’ under the TCPA suggest restrictions may be loosening. Here’s what businesses using automated texts need to know.
Read more about TCPA Autodialer Decisions: Are Restrictions Easing?