Revenge Porn – Uncivil or Criminal?

Revenge Porn is a sexually explicit picture or a video published on the Internet without the subject’s permission, most commonly by a disgruntled ex-partner or someone angry with the pictured person. A link to the true identity of the pictured person is usually attached to the posting so as to assure that the person’s identity is connected to the nudies. It is undoubtedly malicious; aimed at embarrassing and humiliating the pictured person. Often, the image or video is created with the subject’s permission, or is even taken by the subjects themselves. After all, most of us are guilty of “selfies” that should never see the light of day, much less be shared on social media (as evidenced by the Weinergate). However, an inadvertent posting of “sexting” is a far cry from the devious maleficence of revenge porn. So vile and abusive is the nature of this public humiliation, that some state legislatures (and some countries) have passed laws that criminalize revenge porn. Should revenge porn be criminalized at state or federal level or is this uncivil behavior better addressed in civil courts?

Less than a month ago, Wisconsin was the third state this year (after Utah and Idaho) that passed a law criminalizing revenge porn. The Wisconsin law makes it a Class A Misdemeanor to distribute without permission an image of a “nude or partially nude person or of a person engaging in sexually explicit conduct.” California and other states have passed similar laws and about 20 states have proposed this legislature. California however makes an exception for “selfies.”

There have also been civil suits brought against those that posted unauthorized nude images. In Texas, a woman prevailed in a civil suit and was awarded $500,000 in damages – the largest award to date for this type. What about liability for harassment by sites that provide a platform for these types of postings (such as “Is Anyone Up?” or “You Got Posted”)?

“Is Anyone Up?” site founder, Hunter Moore, said “[p]eople threaten me with lawsuits every day, which is funny, because it fuels the site.” Moore shut the site down in April 2012 because he was tired of combing through the daily submissions to weed out daily contributions of child porn. He later opened a new platform. The site’s motto was “pure evil.” Hunter Moore and his subsequent site did eventually land in trouble and arrested by the FBI when a mom of one of his victims spent 2 years tracking down all the victims and finding evidence that he had obtained some of the pictures by hacking people’s computers and other untoward ways that swept him under the reach of existing laws against identity theft and unauthorized computer access.

Section 230 of Title 47 of the United States Code (47 U.S.C. § 230), which was passed as part of Communication Decency Act of 1996, provides protection to internet providers and intermediaries (including bloggers that allow contributions) from law suits under any State or local law that is inconsistent with that section. So, unless the “pure evil” was contributed by Moore himself or picked out, commissioned, paid for or obtained by hacking (or unless it violated any other federal law), any state laws against providing a platform for such content would be preempted by this federal protection. Thankfully, “Mr. Pure Evil” has lived up to his name with such fervor that he violated some laws and thus exposed himself to liability. However, had he been more careful, his site would still be up and running.

However, a recent proposal for a federal law criminalizing revenge porn, if passed, would mean that websites hosting this type of content would be unable to raise the Section 230 defense. This would go a long way to preventing a wide distribution of this content, however, there are obvious First Amendment issues that may stand in the way of this federal legislature. Some countries already criminalize revenge porn; for instance, Israel classified revenge porn as “sexual harassment” which can result in 5 years in jail. The Australian State of Victoria also recently passed a law making revenge porn illegal. It will be interesting to see whether such a federal law will pass or survive a constitutional challenge in the US.

Trash and Cash! The Market Value of Financial Blogging.

On February 2, 2014, Bloomberg News reported, in an article entitled “Investors Bet Against Stock in Harvard Professor’s Blog,” by John Hechinger and Jesse Westbrook, that at least five investors successfully shorted the stock of a media advertising company, Blinkx, after the company received a scathing review (if not a flat out allegation of fraud) by a Harvard professor, Benjamin Edelman on his blog post: “The Darker Side of Blinkx.” Two US based investors who did not want to have their identity revealed commissioned Professor Edelman’s research into the company’s practices. The stock of the company fell by a third of its value in the days following publication of the blog on January 28, 2014. Five large investors took a short position on Blinkx stock just before the release of professor Edelman’s blog. The obvious implication is that anonymous investors commissioned a “hit piece” on a company that they were planning to short.

Is the Harvard professor’s blog a case of “trash and cash?” The answer to that would hinge on when the investors that commissioned this research took a short position on the stocks and whether they knew that the piece would be published. Professor Edelman claims in the amended disclosures on his blog that he was not hired to publish his results after giving them to the clients, but he did have a clause in the contract that conditioned the research on his ability to publish. Would investors not have a reason to know that the results would be published by a prolific blogger who, as a professor at Harvard Business School, has serious readership and credibility? Would the investors not know the piece would be published soon, so as to assure its relevance?

Another problem is with the possibility that the information on which the professor relied could be “insider” information or incorrect misleading information. The question is whether all the information that professor Edelman used was publically available or whether he may have used information and sources that a journalist would be allowed to use, but an investor would be prohibited. Bloggers and publishers are now considered journalists and can not only protect their sources but also can engage (and the assumption is that they would) in the type of investigative reporting that would uncover things not known to the public. Do regulatory agencies have a way of connecting these “hit pieces” with deliberate market manipulation? Do SEC and FINDRA need to read all influential business blogs that have impact on market prices and must the reporters disclose who received the information before it was published?

In his blog post, the professor actually goes so far as to recommend shorting the stock. This seems to take his analysis of “historic and current practices” one step further than reporting and into the territory of dolling out investment advice (or a self-fulfilling prophecy). Could the professor be found complicit in the market manipulation not as a blogger or a journalist, but as a financial advisor? The rise of social media has certainly created new challenges for securities regulators.