‘Revenge Porn’ Could Be Criminal Offense in California
By SOMINI SENGUPTA
On a recent episode of “The Newsroom,” on HBO, the character Sloan Sabbith, a financial reporter, was mortified when an ex-boyfriend posted compromising pictures of her online, which then went viral. Her recourse – on the show at least – was to track down the offending creep and punch him.
If Ms. Sabbith were living in California, she would be closely following the deliberations of the state Legislature here this week. A proposal, to be debated Tuesday in the Assembly, could let victims of so-called revenge porn see their vindictive ex-lovers go to jail for up to a year.
The bill passed the state Senate earlier this summer. It would make it a criminal misdemeanor to post nude or revealing pictures that may have once been taken with a subject’s consent. The practice has become increasingly common, victims’ advocates say. And it poses a vexing legal question, pitting the rights of victims against the principles of free expression. Making matters more complicated is the fact that sites that host these user-generated images are usually immune from civil liability under federal law.
The California proposal is among a few state measures meant to designate revenge porn as a specific crime. New Jersey has one on the books. Florida floated a similar bill earlier this year, which free-speech advocates decried as overly broad. The California proposal, in its current form, differs in that it has been amended to specifically address people who distribute images “with the intent to cause serious emotional distress.”
The measure covers photos and video recordings of a person in “a state of full or partial undress in any area in which the person being photographed or recorded has a reasonable expectation of privacy.”
The question, though, is whether a new practice, enabled by the Internet, deserves a new law – or whether instead existing statutes provide enough protection.
“I’m unclear exactly how much ground the new law would cover that isn’t already covered by existing laws, such as anti-harassment/anti-stalking laws,” said Eric Goldman, a law professor at Santa Clara University, who has warned against newly criminalizing new online behaviors, “As usual, one of the key questions is how existing law has failed and what behavior is being newly criminalized.”
The American Civil Liberties Union opposed the measure when it was originally introduced and has said nothing about the latest amendments.
Its advocates argue that a specific statute is necessary because existing anti-stalking and harassment laws generally cover a repeated pattern of posting such images, and not one particular instance, which itself can be damaging. What’s more, they say, making the posting of these images a punishable offense under a new law would send a message to police and prosecutors. “It signals taking the issue seriously, that harms are serious enough to be criminalized,” said Danielle Citron, a law professor at the University of Maryland.
As for free expression, she argued that the law should distinguish between images that are meant to be public – protest art, for instance, which should get the highest First Amendment protection – and those that are meant to be private, like nude pictures.
Complicating matters, nonconsensual pornography, as the practice is sometimes called, doesn’t involve only a victim and a perpetrator. One person might record the image with the subject’s consent and post without consent, while another entity can host it – several Web sites specialize in doing just that – and many other Internet users can in turn spread that image far and wide in a matter of hours, or less.
“It’s not entirely clear what the culpability of each of these actors are in many contexts, or if they should equally be held liable,” said Woodrow Hartzog, a law professor at Samford University in Birmingham, Ala. He suggested using other laws, like breach of trust, to go after the individuals who post the material.
Web sites that host these images have a strong ally in Section 230 of the federal Communications Decency Act, which protects third-party platforms from liability for user-generated content. There have been efforts to weaken that immunity, most recently by a coalition of state prosecutors that urged Congress to amend the statute. They have been loudly criticized by some Internet free-speech advocates.
But if the photos/videos were taken legally and with the consent of both parties at the time of their creation, how can one of the parties withdraw consent (presumably without informing the other party of the withdrawal of consent) in any sort of a legal way?
This turns into being an "I changed my mind but I didn't tell anyone" sort of issue, which hardly seems practical, let alone legally enforceable.
The other question is one of timing. If the pictures were taken of a legal adult in a legal and consensual way, how can the law reach backwards 2-3 years or more and say that these pictures are now illegal and ineligible for posting? That seems like a huge stretch to me.
I'm sympathetic to the women (usually) whose pictures are posted without their immediate consent, but if there's going to be a law or a court ruling, it ought to be done without contorting normal legal rules and precedents to fit the contours of this sort of activity.
If this were a corporation's media that were aired without their consent, lawyers would be crying about licensing fees and piracy and what not (all because there's a revenue stream to be tapped there), but just because it's a person's media (and no revenue to be tapped, only normal decency to be applied), the consent is suddenly moot or at best wishy-washy?
We have become such a mercantile society, where if something cannot be expressed in $s, it does not have any value. I bet the day violating privacy carries substantial fine, all this would suddenly change, but that won't happen because the biggest entity owing the fines would be our dear Federal govt, thanks to horribly named Patriot Act.
So, it is not about the consent of the capturing of the images but the consent of such release in question
In terms of precedents, obviously the recent industrial upheavals can throw a monkey wrench. But remember, freedom of expression cannot preempt any activities that might be injurious to others