Putting a Stop to New-Age Revenge: In the Age of Twitter, Instagram and Snapchat, Privacy Is Still Fundamental

By Michael Wester*

I. Introduction

In 2009, Florida resident Holly Jacobs had been dating a guy for several years when the relationship suddenly ended.[1]  Following the breakup, her ex-boyfriend posted naked photos of her online.[2]  Within days, the photos went viral, and the intimate images were posted on as many as 100,000 sites.[3]  As a result of the posting, Holly Jacobs was pressured to quit her job, forced to change her name, and suffered emotional stress and anxiety.[4]

In response, Ms. Jacobs filed a lawsuit against her ex-boyfriend alleging that he posted naked pictures of her online without her consent.[5]  However, despite the damage he caused, Holly Jacobs’s ex faced no criminal punishment for his actions.[6]  Unfortunately, the state of Florida does not have a law that prohibits such action, so Ms. Jacobs eventually had no choice but to drop her case.[7]

Holly Jacobs was a victim of revenge pornography, and like so many other victims of revenge pornography, she did not get justice.  Revenge pornography is a subset of non-consensual pornography that significantly impedes an individual’s fundamental right to privacy.[8]  Often, the victims provide the explicit photos or videos to a dating partner consensually, but do not consent to the photo being shared publicly.  In other cases, the images are taken without the consent of the partner.  The intimate images are then uploaded to the Internet where they can then be spread to anyone who has Internet access.  Over the last several years, the number of non-consensual pornography websites has increased annually.[9]

Recently, a study surveyed more than 1,000 American adults and found that sixty-eight percent of them had shared intimate messages or photos from their cellphones.[10]  Of these 1,000 adults, more than ninety of the respondents said an ex had threatened to post risqué photos online.[11]  Of those ninety respondents, more than fifty of them claimed the threat was carried out.[12]  Once these intimate images or videos reach the Internet abyss, it becomes almost impossible to take them all down.[13] Unfortunately, only six states—Alaska, California, Idaho, New Jersey, Utah, and Wisconsin—have legislation that criminalizes non-consensual pornography.[14]

Presently, no federal law exists to protect victims from this abuse.  Instead, the Communications Decency Act actually shields internet service providers and website owners from civil liability that might result when a third party places material on their website.[15]  Further, because of the Communications Decency Act’s existence, the only current way to stop the spread of revenge pornography is by punishing the source—the individuals posting the images to the websites—through state law.[16]  Although a federal law is preferable because these state laws have limited jurisdiction,[17] state laws have indeed attained some success.[18]

This Article aims to spread awareness of these abhorrent occurrences of revenge pornography and pleads that states across the country pass criminal laws that can finally put a stop to them.  Yet, this Article also warns that any state passing such a law will be walking a tightrope between protecting revenge pornography victims and violating constitutional rights to free speech.  To facilitate the discussion, Part II of this Article provides a brief overview of non-consensual pornography and the problems it causes.  Part III promotes criminal punishment for those engaging in revenge pornography.  Finally, Part IV implores state governments to pass legislation that criminalizes the intentional disclosure of sexually explicit images without consent.  Additionally, Part IV discusses the four necessary elements of a model law.

II. Background

Non-consensual pornography, including revenge pornography, is not a new phenomenon.  It can be traced back to the 1980s, when Hustler, a pornographic magazine, started a monthly feature that urged subscribers to submit explicit female images for the next issue.[19]  Many times, the women were either oblivious to the fact the pictures were even taken or entirely unaware they were submitted.[20]  Accompanying the photos was usually a fake biography, consisting of made-up hobbies, sexual fantasies, and interesting facts.[21]  Several women sued the magazine for publishing their photos without their consent, but few, if any, were successful in obtaining justice.[22]

With the advancement of technology, the ability to take and disseminate non-consensual pornography has significantly increased.  Today, dozens of websites exist that receive and then distribute non-consensual intimate images.  Frequently, these websites allow the material to upload anonymously.[23]  Often, however, the victims are not so lucky and do not remain anonymous.  Just like with Hustler’s monthly feature, on some websites anonymous posters are encouraged to share the women’s personal information, including their personal Facebook pages, phone numbers, email addresses, workplaces, and home addresses.[24]  The release of this information can put the victims’ safety in danger.

As the material circulates the Internet, victims are exposed to a range of sexual propositions, stalking, and harassment.[25]  In some cases, victims have reported losing jobs and educational opportunities as a result of this material spreading to people close to their lives.[26]  Often, release of these explicit images causes extreme emotional distress, anxiety, and psychological trauma.[27]  Sadly, their release has even led several victims to commit suicide.[28]

In most cases, attempting to have the material removed from the Internet proves unsuccessful.[29]  Moreover, trying to take down the material is painstaking and expensive.[30]  The intimate photos almost instantaneously circulate the web, and the sites are constantly morphing, which makes it almost impossible to chase down every website on which the material has been posted.  For example, Is Anyone Up, one notorious non-consensual porn site, received over 30 million page views of thousands of ex-girlfriends before it was finally shut down after months of pursuit by victims.[31]   In spite of these victims’ efforts, the website immediately reopened elsewhere under a different name and IP address.[32]

III. Criminal Versus Civil Punishment

Criminal laws are necessary to combat non-consensual pornography because tort law and copyright law are insufficient.  As tort law and copyright law exist currently, they provide no real relief to these victims.[33]  As stated by Mary Anne Franks, the foremost expert on revenge pornography and a professor at the University of Miami School of Law, although civil remedies sometimes help the victims, such civil remedies are not enough.[34]  Rather, because the damage to their lives is so great, the victims just wish these photos had never been released.

States must prevent this intimate material from surfacing online in the first place.  Their best weapon is to criminalize the action.  Some proponents argue that non-consensual pornography should be criminalized because, in many ways, it is an act of sexual use without consent, analogous to sexual assault.[35]  More importantly, though, by criminalizing non-consensual pornography, states can ensure all victims receive justice.

Civil litigation places enormous financial burdens on victims.[36]  Private individuals have immense determination to seek justice but are often without the means to do so.  In non-consensual pornography cases, in particular, only the victims who can afford lawyers and private detectives to chase down every source are the ones who receive some relief.[37]  Frequently, the websites that victims must sue possess the financial resources to slow the investigation process and stop the pursuit.[38]  Criminalizing non-consensual pornography could help alleviate the burden placed on victims.

IV. Plea for New State Laws

This Article recommends that states pass criminal laws specifically tailored to stopping revenge pornography.  Any such state law should define non-consensual pornography as the “posting or publishing to the public of a sexually explicit image without consent.”  Several states currently recognize broader voyeurism laws, which prohibit the non-consensual recording and distribution of sexually explicit images of another person,[39] but these laws are often insufficient to sustain allegations in revenge pornography cases.[40]  The voyeurism laws remain insufficient because they do not protect those who consented to being recorded but did not consent to the distribution of those images, nor those who recorded the images themselves but did not consent to the distribution.  To truly combat non-consensual pornography, there are four elements that every law should contain.

First, a model law should define “explicit images.”  These images should be defined as photographs, film, videotapes, recordings, or any other reproduction of the image of another person, whose intimate parts[41] are exposed or who is engaged in an act of sexual contact.  Second, it should define the “posting” or “publishing” of the intimate images to the public.[42]  “Publishing” should be defined as the disclosing, selling, providing, transferring, distributing, circulating, disseminating, presenting, exhibiting, advertising, manufacturing, or offering of the explicit images to a public forum.[43]

Third, the law should define “consent” as contextual.  Just because the photography or videoing occurs consensually in the privacy of the home does not mean that a partner has consented to put it on the Internet.  As stated by Professor Mary Anne Franks, “sharing a nude picture with another implies limited consent similar to other business transactions.”[44]  As she told the Huffington Post, “[i]f you give your credit card to a waiter, you aren’t giving him permission to buy a yacht.”[45]  It is imperative that any law punishes the abuse of this limited consent, because the violation of this consent is in many ways more detrimental than the violation of consent in a business transaction.  In this case, it is not business and money on the line, but rather an individual’s privacy and personal security.  To establish this context, a form of a reasonable man standard is recommended.  In Franks’ example, a reasonable man, as a waiter, would not take a credit card from a customer and buy a yacht.  Likewise, in a non-consensual pornography context, a reasonable man would not take intimate photos from an ex and release them onto the Internet for the whole world to see, without the ex’s permission.

Finally, each state should add exceptions for individuals to whom the law does not apply.  For example, in Wisconsin, the law does not apply to parents, guardians, or a provider of Internet access.[46]  Additionally, Wisconsin established an “Anthony Weiner”[47] exception, which excludes from the law, “[a] person who posts or publishes a private representation that is newsworthy or of public importance,”[48] based on the idea that individuals who have placed themselves in the public eye have a significantly diminished privacy interest.[49]  As another example, New Jersey has an exemption for law enforcement officers in connection with a criminal prosecution.[50]

V. Conclusion

States must be proactive instead of reactive.  New Jersey, in 2004, became the first state to pass an anti-revenge porn law after a Rutgers University student killed himself.[51]  The law was the first of its kind and made it a felony for any person to disclose sexually explicit photographs or images of another person without that person’s consent.[52]  Nevertheless, one victim had to lose his life before the law was passed.  Clearly, states cannot wait a second longer to pass a law prohibiting non-consensual pornography.

Wisconsin, Idaho, and Utah passed laws relating to this issue in 2014.[53]  New York, Maryland, and Illinois comprise some of the thirteen states currently considering passing some form of non-consensual porn legislation.[54]  Additionally, Representative Jackie Speier of the United States House of Representatives announced she intends to introduce a federal bill, drafted by Professor Mary Anne Franks, criminalizing revenge pornography in the next few months.[55]  Although a stride in the right direction, many believe Representative Speier’s bill will not pass on a federal level.[56] Consequently, strong state criminal legislation is necessary so that this destructive and inexcusable form of sexual exploitation is prevented and punished.

How many more people must be harmed before legislators around the country wake up and protect their constituents? Advances must be made to shield victims, like Holly Jacobs, from the grave harms associated with the distribution of non-consensual pornography.

 


*J.D. Candidate, University of Illinois College of Law, expected 2015.  B.A. 2012, Saint Louis University.  I would like to thank everyone who helped me in the writing of this Article with suggestions and comments, including Angelica Nizio and Andrew Lewis, editors of the Journal of Law, Technology, and Policy, and Kristen Sweat.

[1] Beth Stebner, “I’m Tired of Hiding”: Revenge-Porn Victim Speaks out over her Abuse After Claims Ex Posted Explicit Photos of her Online, Daily News (May 3, 2013, 12:05 PM), http://www.nydailynews.com/news/national/revenge-porn-victim-speaks-article-1.1334147.

[2] Memphis Barker, “Revenge Porn” Is No Longer a Niche Activity Which Victimizes Only Celebrities – The Law Must Intervene, Independent (May 19, 2013), http://www.independent.co.uk/voices/comment/revenge-porn-is-no-longer-a-niche-activity-which-victimises-only-celebrities–the-law-must-intervene-8622574.html.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Stebner, supra note 1.

[8] Woodrown Hartzog, How to Fight Revenge Porn, Atlantic (May 10, 2013, 1:42 PM), http://www.theatlantic.com/technology/archive/2013/05/how-to-fight-revenge-porn/275759/.

[9] Tristan Hallman, Saying She’s a Victim of Revenge Porn, Dallas Woman Fights to Get Online Images Removed, Dallas News (Feb. 16, 2014, 11:00 PM), http://www.dallasnews.com/news/local-news/20140216-dallas-woman-fights-to-get-explicit-online-images-of-her-removed.ece.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] See Michelle Dean, The Case for Making Revenge Porn a Federal Crime, Gawker (Mar. 27, 2014, 2:45 PM), http://gawker.com/the-case-for-making-revenge-porn-a-federal-crime-1552861507 (noting the different states that have laws that affect revenge porn); Erin Donaghue, Judge Throws Out New York “Revenge Porn” Case, CBS News (Feb. 25, 2014, 4:42 PM), http://www.cbsnews.com/news/judge-throws-out-new-york-revenge-porn-case/ (mentioning the Alaska, California, and New Jersey statutes while discussing New York’s lack of a revenge porn criminal statute). See also State “Revenge Porn” Legislation, Nat’l Conf. St. Legislatures, http://www.ncsl.org/research/telecommunications-and-information-technology/state-revenge-porn-legislation.aspx (last visited May 27, 2014) (listing the states that considered revenge porn legislation in the years 2013 and 2014).

[15] 47 U.S.C. § 230 (2006).

[16] 47 U.S.C. § 230 (2006) (“Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”).

[17] Mary Anne Franks, Why We Need a Federal Criminal Law Response to Revenge Porn, Concurring Opinions (Feb. 15, 2013, http://www.concurringopinions.com/archives/2013/02/why-we-need-a-federal-criminal-law-response-to-revenge-porn.html.

[18] EJ Dickson, Revenge Porn Site Ordered to Pay $385,000 to Victim, Daily Dot (Mar. 20, 2014), http://www.dailydot.com/crime/revenge-porn-verdict-you-got-posted/.

[19] Alexa Tsoulis-Reay, A Brief History of Revenge Porn, N.Y. Mag. (Jul. 21, 2013), http://nymag.com/nymag/features/revenge-porn-2013-7/.

[20] Amanda Levendowski, Our Best Weapon Against Revenge Porn: Copyright Law?, Atlantic (Feb. 4, 2014, 1:03 PM), http://www.theatlantic.com/technology/archive/2014/02/our-best-weapon-against-revenge-porn-copyright-law/283564/.

[21] Id.

[22] Id.

[23] See Women Sue Explicit “Revenge Porn” Site After Jilted Lovers Anonymously Posted Revealing Pictures of Them, Daily Mail (Jan. 25, 2013, 6:22 PM), http://www.dailymail.co.uk/news/article-2268476/Ex-plicit-revenge-porn-site-allowed-jilted-lovers-anonymously-post-revealing-pics-girlfriends-facing-class-action-suit.html (discussing a lawsuit against a website that allows people to anonymously upload revenge porn).

[24] Dickson, supra note 18; Brenton Awa, Hundreds of Local Women Fall Victim to “Revenge Porn”, KITV (Feb. 26, 2014, 11:00 PM), http://www.kitv.com/news /hawaii/hundreds-of-local-women-fall-victim-to-revengeporn/24708622.

[25] Mary Anne Franks, We Need New Laws to Put a Stop to Revenge Porn, Independent (Feb. 23, 2014), http://www.independent.co.uk/voices/ comment/we-need-new-laws-to-put-a-stop-to-revenge-porn-9147620.html.

[26] Id.

[27] Id.

[28] Awa, supra note 24; See Barker, supra note 2 (noting that the New Jersey anti-revenge pornography law was passed after a Rutgers University student killed himself).

[29] Franks, supra note 25.

[30] See Danielle Keats Citron & Mary Anne Franks, Criminalizing Revenge Porn, Wake Forest L. Rev. 5 (forthcoming 2014), available at http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=2424 (noting the steep costs associated with revenge porn).

[31] Barker, supra note 2.

[32] Citron & Franks, supra note 30, at 4.

[33] EJ Dickson, Texas Woman Wins Largest Settlement Ever in Revenge Porn Case, Daily Dot (Feb. 28, 2014), http://www.dailydot.com/crime/porn-revenge-law-texas/.

[34] Id.

[35] Franks, supra note 25.

[36] Citron & Franks, supra note 30, at 5.

[37] See Barker, supra note 2 (stating that in Holly Jacobs’ case, she found that only the rich and famous can wield civil laws to effect because they are the only ones that can afford lawyers to chase after all of the sites who have posted the materials).

[38] Id.

[39]See Cynthia J. Najdowski & Meagen M. Hildegrand, The Criminalization of “Revenge Porn”, Am. Psychol. Ass’n (Jan. 2014), http://www.apa.org/monitor/2014/01/jn.aspx (noting that critics state that this is a violation of the right to free speech).

[40] Mary Anne Franks, Why we Need a Federal Criminal Law Response to Revenge Porn, Concurring Opinions (Feb. 15, 2013), http://www.concurringopinions.com/archives/2013/02/why-we-need-a-federal-criminal-law-response-to-revenge-porn.html.

[41] See Alaska Stat. § 11.61.120 (2013) (defining “intimate parts” as genitals, anus, or female breast); id.

[42] See N.J. Stat. Ann. § 2C:14-9 (West 2014) (providing an exception for law enforcement officers engaged in the official performance of their duty).

[43] Id.

[44] Jessica Walters, Why “Revenge Porn” Is Legal in 48 States, Avvo Blog (Dec. 4, 2013, 1:57 PM), https://nakedlaw.avvo.com/privacy-2/why-revenge-porn-is-legal-in-48-states.html.

[45] Anne Flaherty, “Revenge Porn” Victims Demand New Laws, Huffington Post (Nov. 15, 2013, 3:35 AM), http://www.huffingtonpost.com/2013/11/15/ revenge-porn-laws_n_4280668.html.

[46] See Wis. Stat. § 942.09 (2013) (stating that parents and guardians are excluded as long as the representation does not cross into child abuse or child pornography and the publication is not for commercial purposes).

[47] See Tracy Connor, Anthony Weiner Admits Sexting Continued After 2011 Resignation from Congress, NBC News (July 24, 2013 3:53 AM), http://www.nbcnews.com/news/other/anthony-weiner-admits-sexting-continued-after-2011-resignation-congress-f6C10721264 (demonstrating how the exception to Wisconsin’s law operates).

[48] Wis. Stat. § 942.09 (2013).

[49] See Corliss v. Walker, 57 Fed. Rep. 434 (1983); see also Rosenfeld v. U.S. Dep’t of Justice, No. C-07-3240 EMC, 2012 WL 710186 at *5 (N.D. Cal. Mar. 5, 2012).

[50] N.J. Stat. Ann. § 2C:14-9 (West 2014).

[51] Barker, supra note 2.

[52] N.J. Stat. Ann. § 2C:14-9 (West 2014).

[53] Michelle Dean, Wisconsin Passes Anti-“Revenge Porn” Law, Gawker (Apr. 9, 2014, 10:00 AM), http://gawker.com/wisconsin-passes-anti-revenge-porn-law-1561101182.

[54] Donaghue, supra note 14.

[55] Steven Nelson, Federal ‘Revenge Porn’ Bill Will Seek to Shrivel Booming Internet Fad, U.S. News (Mar. 26, 2014), http://www.usnews.com/news/articles/ 2014/03/26/federal-revenge-porn-bill-will-seek-to-shrivel-booming-internet-fad.

[56] Liz Halloran, Race to Stop “Revenge Porn” Raises Free Speech Worries, NPR (Mar. 6, 2014, 11:16 AM), http://www.npr.org/blogs/itsallpolitics/2014/03/06/ 286388840/race-to-stop-revenge-porn-raises-free-speech-worries (stating that there are constitutional perils in bills being considered because of the worry of protecting the right to free speech).