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.
