Revenge porn

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Revenge porn is sexually explicit media that is publicly shared online without the consent of the pictured individual. Revenge porn is typically uploaded by ex-partners or hackers. Many of the images are pictures taken by the pictured persons themselves (selfies).[1][2] The images are often accompanied by personal information, including the pictured individual's full name, links to Facebook and social media profiles or addresses.[3][4] In January 2014, Israel became the first country to classify revenge porn as a sex crime.[5] Revenge porn is also criminalized in the Australian state of Victoria.[6] Brazil has introduced anti-revenge porn legislation.[7]

Background[edit]

In the 1980s, Hustler began a monthly feature of reader-submitted images of naked women called "Beaver Hunt".[8] Beaver Hunt photographs were often accompanied by details about the woman, like her hobbies, her sexual fantasies, and sometimes her name.[8] Not all of the women featured in Beaver Hunt submitted their own images and several women sued the magazine for publishing their photographs without their permission.[9]

Two decades later, Italian researcher Sergio Messina identified “realcore pornography”, a new genre consisting of images and videos of ex-girlfriends distributed through Usenet groups.[10] In 2008, amateur porn aggregator XTube began receiving complaints that pornographic content had been posted without subjects’ consent.[10] Several sites began staging consensual pornography to resemble revenge porn, as well as hosting "authentic" user-submitted content.[10]

Revenge porn began garnering international media attention when Hunter Moore launched IsAnyoneUp.com in 2010.[11] The site featured user-submitted pornography,[11] and was one of the first sites to adopt the model initiated by Beaver Hunt: IsAnyoneUp often included identifying information, such as the subjects’ names, employers, addresses and links to social networking profiles.[11]

In August 2012, the Cyber Civil Rights Initiative started an online campaign against revenge porn.[12] Their alternative definition is the online distribution of sexually explicit images of a non-consenting individual with the intent to humiliate that person. The group also considers it a form of sexual abuse.[13]

Legislation[edit]

Tort, privacy, copyright and criminal laws offer legal avenues for the removal of non-consensual pornography,[14][15] and many individuals whose sexually explicit photographs were posted online without their consent have sought legal remedies.[16]

US laws[edit]

In the United States, three states have expressly applicable laws to revenge porn: New Jersey, California and Virginia.[17] [18]

New Jersey’s law prohibits the distribution of "sexually explicit" photographs and films by any person, “knowing that he is not licensed or privileged to do so” and without the subjects’ consent.[19] The law was used to prosecute Dharun Ravi, the Rutgers student who distributed webcam footage of his roommate Tyler Clementi engaging in sexual activity, after which Clementi committed suicide.[20] The law has also been used to prosecute several men who allegedly distributed revenge porn of their ex-girlfriends.[21]

California's law, passed in October 2013, prohibits the distribution of “intimate” photographs or films taken of a victim “with the intent to cause serious emotional distress”.[22] The law protects images that were taken consensually, but only if the distributor of the image is also the photographer.[22] The California law has been criticized by victim-advocates for being under-inclusive and under-protective.[23][24] Other scholars have argued that new criminal laws meant to combat revenge porn are likely to be overbroad, resulting in unintended consequences.[25]

Criminal Prosecutions[edit]

Several well-known revenge porn websites, including IsAnyoneUp and the Texxxan, have been taken down in response to actual or threatened legal action.[26]

In December 2013, California Attorney General Kamala Harris charged Kevin Bollaert, who ran the revenge porn website UGotPosted, with 31 felony counts, including extortion and identity theft.[27] In January 2014, IsAnyoneUp founder Hunter Moore was indicted on 15 felony counts in January 2014, including conspiracy to violate the Computer Fraud and Abuse Act, an anti-hacking statute.[28]

Tort and privacy law[edit]

Recent lawsuits over revenge porn have alleged invasion of privacy, public disclosure of private fact and intentional infliction of emotional distress against the individuals who uploaded the images.[29] Forty states, including California and New York, have anti-cyberharassment laws that may be applicable to cases of revenge porn.[30]

In February 2014, a US $500,000 settlement was awarded to a Texas woman who brought suit against her ex-boyfriend for posting video and photos of her on the Internet. The state did not have a specific "revenge porn" law at the time of the lawsuit.[31][32][33]

Copyright[edit]

An estimated 80% of revenge porn pictures and videos are taken by the subject themselves.[23] Those individuals can bring actions for copyright infringement against the person who uploaded their nude or semi-nude "selfies". American victims may file Digital Millennium Copyright Act takedown notices with service providers.[34]

First Amendment vs Revenge Porn, and anti-SLAPP[edit]

Some free speech advocates object to revenge porn laws on First Amendment grounds.[35] The American Civil Liberties Union has defended revenge porn as constitutionally protected speech as long as the images do not run afoul of criminal laws such as child pornography and stalking laws.[36] United States courts are generally reluctant to uphold legislation that restricts free speech.[37]

Revenge porn uploaders and websites may also challenge lawsuits using state protections against strategic lawsuit against public participations (anti-SLAPP laws),[38] which allow defendants to counter lawsuits aimed at stifling free speech.[39]

Communications Decency Act §230[edit]

Recent revenge porn lawsuits name service providers and websites as defendants alongside individuals who uploaded the images.[40] The Communications Decency Act, also known as §230, shields websites and service providers from liability for content posted by users.[41][42] If user-generated content posted to a website does not violate copyright or criminal laws, sites have no obligation to remove the content under §230.[43]

Laws in other countries[edit]

Many European countries have broad privacy statutes that may be applicable to revenge porn.[44]

France criminalizes the willful violation of the intimate private life of another by "transmitting the picture of a person who is within a private place, without the consent of the person concerned".[45]

In January 2014, Israel became the first country to pass a law that classifies revenge porn as a sex crime.[46] Sharing sexually explicit videos without the consent of the pictured individual will be punishable by up to five years in prison.[46]

The Australian state of Victoria modified its pre-existing sexting laws to prohibit the sending of sexually explicit pictures of a third party.[47]

The Philippines criminalizes copying, reproducing, sharing or exhibiting sexually explicit images or videos over the Internet without written consent of the individual depicted.[48]

Minors[edit]

If the video or images in question are of individuals who are minors, this can lead to additional charges for child pornography[49] as has happened in non-revenge porn related cases involving sexting.[50][51]

References[edit]

  1. ^ Camille Dodero,"'Gary Jones' Wants Your Nudes", The Village Voice (May 16, 2012)].
  2. ^ Danielle K. Citron, "‘Revenge porn’ should be a crime", CNN Opinion (Aug. 30, 2013).
  3. ^ Emily Bazelon,Why Do We Tolerate Revenge Porn?", Slate (Sept. 25, 2013).
  4. ^ Eric Larson, "It's Still Easy to Get Away With Revenge Porn", Mashable (Oct. 21, 2013).
  5. ^ Sam Frizell, "Israel Bans 'Revenge Porn'", Time (Jan. 7, 2014).
  6. ^ Charlotte Lytton, "When Sexting Gets Ugly: Flirting Can Become Fodder for Revenge Porn", The Daily Beast (Jan. 7, 2014)
  7. ^ Krystie Lee Yandoli, "Revenge Porn Legislation Called For In Brazil Following 17-Year-Old's Suicide", Bustle (2013)
  8. ^ a b Kelly Dennis, Art/Porn: A History of Seeing and Touching, Oxford International Publishers (2009)
  9. ^ See, e.g., Wood v. Hustler, 736 F.2d 1084 (5th Cir. 1984).
  10. ^ a b c Alexa Tsoulis-Reay, "A Brief History of Revenge Porn", New York Magazine (July 21, 2013).
  11. ^ a b c On The Media, Revenge Porn’s Latest Frontier, WNYC (Dec. 2, 2011).
  12. ^ Staff. "About". CCRI. Retrieved 27 March 2014. 
  13. ^ Mary Franks, Criminalizing Revenge Porn: A Quick Guide.
  14. ^ Woodrow Hartzog,How to Fight Revenge Porn, Stanford Law Center for Internet and Society (May 10, 2013).
  15. ^ Doug Barry, A New Bill in Florida Would Make Non-Consensual ‘Revenge Porn’ a Felony, Jezebel (Apr. 7, 2013).
  16. ^ Emily Bazelon,Fighting Back Against Revenge Porn, Slate (Jan. 23, 2013).
  17. ^ Julia Dahl, “Revenge porn” Law in California a Good First Step, But Flawed, Experts Say, CBS News (Oct. 3, 2013).
  18. ^ Rachel Weiner,[1], Washington Post (Feb. 28, 2014).
  19. ^ New Jersey Invasion of Privacy, N.J.S.A. 2C:14-9.
  20. ^ Megan DiMarco and Alexi Friedman,"Live Blog: Dharun Ravi Sentenced to 30 Days in Jail", The Star-Ledger (May 12, 2012).
  21. ^ Marueen O’Connor,"The Crusading Sisterhood of Revenge-Porn Victims", New York Magazine (Aug. 29, 2013).
  22. ^ a b California SB 255.
  23. ^ a b Heather Kelly, "New California 'Revenge Porn' Law May Miss Some Victims", CNN (Oct. 3, 2013).
  24. ^ Hunter Moore, the founder of IsAnyoneUp, has also criticized the California law for not protecting selfies, "which is the whole point...of revenge porn". Melody Gutierrez, "Law offers hope to victims of revenge porn", [San Francisco Chronicle|SFGate]] (Oct. 5, 2013).
  25. ^ An overbroad "revenge porn" law poses a threat to free speech and the public, risks being struck down on First Amendment grounds and imprisoning or convicting unintended offenders. Sarah Jeong, "Revenge Porn Is Bad. Criminalizing It Is Worse", Wired (Oct. 28, 2013).
  26. ^ Erica Goode, Victims Push Laws to End Online Revenge Posts, New York Times(Sep. 23, 2013).
  27. ^ "Press Release: Attorney General Kamala D. Harris Announces Arrest of Revenge Porn Website Operator".
  28. ^ Indictment, United States v. Hunter Moore.
  29. ^ Complaint in Jacobs v. Seay, 13-1362 6CA0 (Fl. Apr. 18, 2013)
  30. ^ State Cyberstalking and Cyberharassment Laws, National Conference of State Legislatures (Nov. 16, 2012).
  31. ^ Staff. "Houston woman wins $500,000 in 'revenge porn' lawsuit". abclocal.go.com. Retrieved 3 March 2014. 
  32. ^ Staff. "Texas Jury Awards Revenge-Porned Woman Half a Mil". Adult Video News. Retrieved 3 March 2014. 
  33. ^ Adi Robertson, "Texas Woman Wins Half a Million Dollars in Revenge Porn Lawsuit", The Verge (Mar. 1, 2014)
  34. ^ 17 U.S.C. §102-Subject Matter of Copyright: In General.
  35. ^ Erin Fuchs, "Here’s What the Constitution Says About Posting Naked Pictures Of Your Ex To The Internet", Business Insider (Oct. 1, 2013).
  36. ^ Arguments in Opposition of California's SB 225, (July 3, 2013).
  37. ^ See United States v. Alvarez, 132 S.Ct. 2537, 2544 (US 2012) ("[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content").
  38. ^ Joe Mullin, "New lawsuit against “revenge porn” site also targets GoDaddy", Ars Technica (Jan. 22, 2013).
  39. ^ Twenty-five states currently have anti-SLAPP legislation. "What is a SLAPP suit?", Chilling Effects Clearinghouse (2013).
  40. ^ Toups v. Godaddy.com, No. D130018-C (Tex. June 18, 2013).
  41. ^ 47 U.S.C. §230 Protection for Private Blocking and Screening of Offensive Material.
  42. ^ Most lawsuits against service providers are barred by §230. Susanna Lichter, Unwanted Exposure: Civil and Criminal Liability for Revenge Porn Hosts and Posters, Harvard Journal of Law and Technology (May 28, 2013).
  43. ^ Jerry Brito, Are Laws Against Revenge Porn A Good Idea? (Oct. 21, 2013).
  44. ^ See Marc Rotenberg and David Jacobs, "Updating the Law of Information Privacy: The New Framework of the European Union", Harvard Journal of Law and Public Policy Vol. 36, No. 2 (Spring 2013).
  45. ^ French Penal Code Article 226-1 [2](Nov. 19, 2013).
  46. ^ a b Yifa Yaakov, "Israeli Law Makes Revenge Porn a Sex Crime", The Times of Israel (Jan. 6, 2014).
  47. ^ Jon Martindale, "Australian State Outlaws Revenge Porn", KitGuru, (Dec. 12, 2013).
  48. ^ Philippines Anti-Photo and Video Voyeurism Act of 2009 [3] (Feb.10.2010).
  49. ^ "Sexting teens can go too far - 12/14/08 - Philadelphia News - 6abc.com". Abclocal.go.com. 2008-12-14. Retrieved 2014-3-27. 
  50. ^ Seidman, Karen. "Child pornography laws ‘too harsh’ to deal with minors sexting photos without consent, experts say". National Post News - Canada. Retrieved 27 March 2014. 
  51. ^ Matyszczyk, Chris. "Teen charged with child porn for allegedly tweeting nude selfies". Cnet.com. Retrieved 27 March 2014. 

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