Revenge Porn Legal Primer: Laws & Legalities

Let's talk about the ins-and-outs of revenge porn legalities.
Let’s talk about the ins-and-outs of revenge porn legalities.

Welcome to the world of revenge porn – where scorned ex-lovers (and general jerks) publicly “sl*t shame” former paramours by posting prurient pictures online. To add opportunity to injury, a profitable revenge porn website industry has emerged. Not only do sites provide a platform for the offending material, but  they also charge revenge porn victims a hefty sum to remove media (think $5,000 in some cases). The worst part: paying the fee doesn’t guarantee it won’t pop up elsewhere once its removed from one site.

And believe it or not, revenge porn is perfectly legal in most jurisdictions. That said, victims are coming up with novel and effective ways to sue in civil court using various DMCA, defamation and false light invasion of privacy laws. Still, no nationwide law exists to combat revenge porn on a federal level. States, like Florida, have tried to pass revenge porn laws, but ultimately failed due to free speech concerns. However, some states are still trying to craft revenge porn laws that will protect peoples’ privacy without stomping on free speech toes.

State Revenge Porn Laws

Revenge porn reformers are largely seeking laws on the state level. Why? Because when it comes to Internet laws, the federal government is shockingly slow. Take, for example, federal politicians’ inability to pass a universal online privacy law – politicians have been trying for 15 years and have yet to get something passed.

California’s Ban on Revenge Porn

In October 2013, California became the second state to enact legislation banning revenge porn. The law specifically prohibits people from posting nude photos and videos of another person without their consent. Intent to cause distress or psychological harm must also be present to win a claim. Violating the new law is a misdemeanor that carries a penalty of $1,000 and up to six months in jail.

Maryland’s Anti-Revenge Porn Bill Proposition

In Maryland, state representative Jon Cardin introduced a revenge porn bill. Cardin cited a study in which 50 percent of respondents said they had sent nude or sexually explicit photos or videos of themselves to someone they knew. About 10 percent of those surveyed had received a threat from a former romantic partner to distribute the images publicly. Under Cardin’s law, if passed, distributing revenge porn would be a felony in Maryland punishable by a $25,000 fine and up to five years in prison.

New York’s Anti-Revenge Porn Law Proposal

New York is also in the process of drafting a revenge porn bill. The punishment for posting or distributing sexually explicit images of someone without their consent would be a fine of up to $30,000. It would also be considered a class A misdemeanor. However, the representatives sponsoring the bill, Joe Griffo and Phil Boyle, specifically want to expand the law to criminalize the distribution of images that were taken by the person in the photos or videos. This is a departure from California’s law, which only punishes people who distribute photos or videos they took themselves.

Shortcomings of Revenge Porn Laws

The American Civil Liberties Union originally opposed the California revenge porn law, not because the organization condones the practice, but because it has concerns that the law unintentionally chills free speech. When lawmakers narrowed the scope of the bill, however, the ACLU withdrew its objection. Under the new version, intent is a test element, and actions must have a verifiable adverse effect on the victim in order for a conviction.

Although passing the law was a positive step, some critics are concerned it doesn’t go far enough in securing justice for revenge porn victims. Why? Because establishing the intent to harm is difficult, and victims who wish to press charges may be required to submit psychiatric records to prove “emotional distress” – the act of which is arguably another invasion of privacy.

The California law only punishes people who distribute photos they, themselves, took of a person. While passing the law could help many people seek justice, the reality is that 80 percent of revenge porn cases involve media that the person in the images took themselves. So under California’s new law, these people still have no legal recourse.

Revenge porn is a fairly new phenomenon that encapsulates the theoretical difficulties associated with online privacy laws. Basically, if they want revenge porn laws, legislators will have to find a way that doesn’t encroach on free speech rights.

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