Fighting Revenge Porn

The Scarlet Letter has been cruelly reimagined and digitally enhanced for the information age. A woman’s sexual indiscretions were harsh and humiliating back in Nathaniel Hawthorne’s day, but there is something even more invasive and insidious about the scourge of revenge porn and its free speech apologists.

Revenge porn sites are simply the modern version of victimizing and embarrassing women and men who find themselves on the wrong side of a slighted ex or an unscrupulous hacker. Revenge porn sites allow the posting of private photos of men and women in compromising positions without consent and often under the shield of the Communications Decency Act, a cruel misnomer if there ever was.

The ABA Journal recently reported that if a person finds themselves on the growing number of revenge porn web sites without their consent, fighting to get the photos removed is often a frustrating, expensive and potentially dangerous proposition. Often these sites have comment areas that can be rude, insulting and even threatening to personal privacy. In some cases, information like a home address, place of school or work or social media accounts accompany the images.

According to the ABA Journal, “[o]nly two states, California and New Jersey, make it illegal to post a sexual photo online without the subject’s consent. Though experts say revenge porn may violate other state statutes, it’s common for police to say no law was broken unless the picture is child porn, of those under 18 when a photo was taken.”

Victims “…have threatened or filed lawsuits alleging privacy violations….But while suing the website is efficient, the law may forbid it. Section 230 of the federal Communications Decency Act grants website operators immunity from lawsuits over their users’ speech—a measure intended to preserve online free speech. Revenge porn sites often invoke it, and some experts believe it protects them.”

So is there hope for these victims who find their lives, careers and online reputation have been ruined by these sites? Sometimes victims can claim copyright infringement, if they have taken steps to assert a copyright interest in their photos, but typically copyright belongs to the creator of the image, which is rarely the victim. Also, efforts to sue these sites have had mixed results in the courts. Some sites operate offshore where they are able to evade the very laws which shield U.S. companies from liability.

A group of lawyers recently started Without My Consent, a non-profit organization seeking to combat online invasions of privacy and empower victims to seek justice and redress. Claimants have asserted a variety of causes of action, including Intentional Infliction of Emotional Distress, Negligence, Stalking, and Invasion of Privacy claims, as well as civil restraining orders and other affirmative steps to protect privacy and prevent further online harassment.