The Legal System’s Non-Response to “Revenge Porn” (Updated 11/7/13)

Posted: May 22, 2013 in Policing, Technology & Crime
Tags: , , , ,

I’ve been following an unfolding story over the past few months about so-called “revenge porn” websites that publish nude pictures of individuals without their knowledge or permission. Apparently, the idea is that jilted ex-boyfriends or ex-girlfriends can submit these pictures to the web as a way of getting even.

Ars Technica has been running a series of articles on a particularly egregious “revenge porn” website called IsAnyBodyDown that published not only nude pictures of people without their consent, but also identifying and contact information for the person in the photos as well.

To add insult to injury, the website also allegedly owned and operated a second website that, for a fee, offered to have the offending pictures removed.

Surprisingly, there doesn’t appear to be any clear way of shuttering an operation like this via the legal system, but an attorney named Marc Randazza has reportedly attempted to do so using copyright law as a tool. The legal theory is that the site’s owner, Craig Brittain, is violating the ownership rights held by the individuals who actually took the photos, which in some cases is the same person who is pictured.

It’s not certain if this approach would have prevailed in court or not, especially in cases where the person pictured is not the same person who took the photograph, but copyright law is one potential avenue for shutting down what are arguably vindictive sites that do real harm to real people.

Fortunately, Brittain announced last month that he would be closing his site, which is definitely a good thing.  But, other sources have since reported that the same day he made that announcement, he also registered two new domain names. So, it remains to be seen what will happen next.

Clearly, the law needs to evolve in ways that prohibit publishing photos without informed consent, especially if the purpose of doing so is to embarrass or harass. And, it’s yet another reason for everyone to take precautions to carefully protect their online privacy.

If you’ve been the victim of this type of harassment, you might also consider checking out the website, Without My Consent, which provides resources that may be helpful.

Update – 10/2/13: Governor Jerry Brown today signed a bill that makes it a “misdemeanor to post identifiable nude pictures of someone else online without permission with the intent to cause emotional distress or humiliation.”  Obviously, the law only applies in California, but it’s definitely a step in the right direction.

Update – 11/7/13: This Slate article makes the case that revenge porn doesn’t qualify as free speech due to its intent and its lack of contribution to free speech generally. Here’s a nice quote from said article that explains it more fully:

To be sure, the government cannot censor the expression of an idea because society finds it offensive or distasteful. Truthful speech should not be banned because it makes people uncomfortable. But certain categories of speech can be regulated because they bring about serious harm and make only the slightest contribution to free speech. Revenge porn comes under that exact heading.

To my mind, this is a solid argument that puts the lie to any claims that censoring revenge porn is a violation of First Amendment protections.

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