The Legal Response to Revenge Porn

It is not uncommon for couples to break up on less than stellar terms. There is quite a difference, however, between deleting an ex’s phone number and posting nude pictures or videos of him or her on the Internet in order to cause embarrassment or fallout with friends and family. This phenomenon, known as revenge porn, has increasingly received attention from the nation’s lawmakers and pro bono attorneys. This attention culminated in October of 2013, when California passed the first revenge porn statute, California Penal Code § 647(j)(4), into law. The statute states:

Any person who intentionally distributes the image of the intimate body part or parts of another identifiable person, or an image of the person depicted engaged in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation by the person depicted or in which the person depicted participates, under circumstances in which the persons agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress.

This language reflects the law’s amended form—in September of 2014, the California legislature updated the language to include “selfies” (images in which the subject is also the picture-taker), which was outside the law’s original scope.

Despite the fact that the statute has been on the books since 2013, the first successful conviction under the statute didn’t come until Noe Iniguez was convicted on December 1, 2014 for posting a topless picture of his ex-girlfriend on her employer’s Facebook page. See People v. Iniguez, Cal. Super. Ct., No. 4CA05206, complaint filed, November 3, 2014. He was sentenced to a year in jail and three years’ probation for the misdemeanor violation.

After California, fifteen other states (Alaska, Arizona, Colorado, Delaware, Georgia, Hawaii, Idaho, Illinois, Maryland, New Jersey, Pennsylvania, Texas, Utah, Virginia, and Wisconsin) have passed revenge porn statutes, each with varying degrees of toughness and varying terminology and exceptions. K&L Gates, the Pittsburgh-based law firm, has spearheaded the effort to get laws like these on the books and has dedicated hours of pro bono work to protecting victims of revenge porn. Their program, the Cyber Civil Rights Legal Project, has about fifty lawyers that volunteer their time, providing legal assistance in protecting victims’ rights to privacy. Most of the Project’s clients are funneled to them from various non-profits like the Cyber Civil Rights Initiative, founded by a revenge porn victim, and Without My Consent.

The reason that these organizations find revenge porn statutes necessary is simple. Previously, victims who wanted pictures taken down had a remedy through federal law—it was just a thoroughly unattractive one. Their best option was to file a complaint based on federal copyright law. In order to do that, however, they would first have to publicly register the photos or videos with the United States Copyright Office as the owners of the content. Because having sensitive pictures and videos out in public is the very cause of their emotional distress, it is easy to see why most victims would rather not use the federal copyright path.

To that end, non-profits like the Cyber Civil Rights Initiative are holding up Illinois’s revenge porn statute as a model for all other states. This statute is considerably tougher than most other states’ for a number of reasons. First, there is no motive requirement. Although the paradigmatic case of revenge porn involves people posting sensitive content to cause distress, sometimes people post revenge porn for money or for no real reason at all. Second, the law expressly includes selfies, which is important because 83% of intimate images originate as selfies, and does not require the victim to be nude, as some current laws do. Third, many revenge porn statutes only punish the original poster/distributor. Illinois’s law, however, rejects this approach. Instead, Illinois’s statute punishes any secondary recipient of the image or video that forwards or redistributes the image or video when a “reasonable person” would understand that the illicit material was to remain private. And lastly, Illinois makes the offense a Class 4 felony, which is punishable by one to three years in prison and up to $25,000 in fines plus restitution.

It remains to be seen whether the nine states (and the District of Columbia) that have revenge porn bills pending in their legislatures will follow Illinois’s lead in its tough response to nonconsensual pornography. Regardless, the continual efforts of K&L Gates and non-profit organizations are helping to protect the right to privacy in the Internet age.

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