Kimberly B. Herman, The Daily Record Newswire
When actress Jennifer Lawrence's cellphone was hacked recently and nude photos of her were stolen, her public relations people stated clearly that investigators had been contacted and that anyone who posted the stolen photos online would be prosecuted. That threat was broadcast widely by the media, and a line was drawn.
Oh, if only every victim of revenge porn had Jennifer Lawrence's clout. Or better still, if only there was a clear, well-publicized law that discouraged vindictive exes from posting naked pictures of their lovers to the Internet. Such a law might save much humiliation, harassment, frustration and despair for ordinarily private people who acted otherwise out of trust and passion.
For now, the laws around revenge porn - the posting of nude or sexually explicit photographs or videos of people online without their consent - are still forming. Thirteen states have enacted legislation addressing revenge porn since 2013, according to the National Conference of State Legislatures. But no federal law is in place, and many other states have shot down proposals.
That leaves victims to look for other solutions when desperately trying to pull their compromising pictures off of the Internet. Most traditional answers are ineffective, but one may do the job.
Insufficient remedies
Revenge porn is a digital scourge. A rejected lover tries to get even by uploading photographs to websites that often are created specifically to accommodate that spiteful intent. The poster frequently adds the victim's name, address, email and links to social media pages to the images.
According to the website "End Revenge Porn," started by a revenge porn victim, one in 10 former partners threatens to post sexually explicit photos of an ex, and about 60 percent do so. About 80 percent of the victims are women.
The consequences can be shattering to the victims. Many say they have lost their jobs or been approached by strangers who have seen the photos. They have been harassed by phone or email. Relationships with family and friends have changed
For the most part, the remedies for the victims are insufficient. The Communications Decency Act, Section 230, undermines most claims against website operators. Section 230 protects interactive service providers from liability for user-generated content. Since more than 80 percent of revenge porn photos posted are "selfies" and posted as received, revenge porn websites aren't creating the intimate photos that are posted.
Nor does the Computer Fraud and Abuse Act offer a solution. It prohibits unauthorized access of a protected computer to obtain information without authorization. But since the explicit photos are usually sent voluntarily from one party to the other, no unauthorized access occurs.
Tort claims fall short as well. Harassment is often a charge leveled by one former lover against another. For that to stick, though, the aggressor must "communicate" with the victim in a way likely to cause annoyance or harm. Revenge porn images are not "communication" with the victim.
Stalking, too, is often a claim made against ex-boyfriends or ex-girlfriends. But for it to hold, the aggressor needs to engage in a "course of conduct" likely to cause the victim fear or material harm. Uploading pictures one time is not a "course of conduct." Rather, it is a nasty single act that takes on a life of its own across the Internet.
Finally, there is the accusation of false light. Once again, it is not applicable because the publicized image must be "false" in order to violate someone's privacy. Unfortunately, revenge porn victims often take the revenge porn photos and voluntarily transmit them to the uploader. The images aren't "false," just something one person sent to someone he or she trusted.
Promising solution
The one promising route that exists is copyright law. Under copyright law, the copyright ownership of a fixed, tangible work of original authorship is held by the person who creates the work. Revenge porn photos are selfies and therefore original works created by the person taking the picture. That copyright is violated when someone reposts that photo without the permission of the copyright holder.
Victims can use the Digital Millennium Copyright Act to require website operators to "de-index" and to take the photos down. The DMCA addresses copyright issues online. It gives websites - including revenge porn sites - immunity from copyright infringement claims based on content uploaded by users of the site. But the act also requires websites to create a procedure to allow copyright holders to file complaints. If those holders request that the images be taken down and the site does not comply, it can be sued for infringement and be liable for damages. That's an incentive to cooperate.
Revenge porn has become a convenient way to destroy lives or simply to threaten to do so. Fortunately, public opinion is shifting and that should lead to widespread legislation against it. Posters are seen as perpetrators who should face consequences. And those who send selfies are finally seen as victims - and not foolish people who created their own troubles.
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Kimberly B. Herman is a partner in the corporate department of Sullivan & Worcester in Boston. She heads the intellectual property group.
Published: Thu, Nov 20, 2014
