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Could Legislation Help Prevent Revenge Porn?

by Joseph C. Maya on Jul. 14, 2017

Criminal Lawsuit & Dispute  Lawsuit 

Summary: A blog post about the impact of revenge porn and how the government is thinking about criminalizing it to prevent it.

Contact the personal injury attorneys at Maya Murphy, P.C. today. We can help you get the just compensation you deserve for your injuries of those of a loved one. For a free initial consultation, call 203-221-3100 or email JMaya@Mayalaw.com.

In what has been described as a “disturbing trend,” scorned lovers are using the Internet to post sexually explicit images, such as “selfies,” or images captured with a hidden camera, of another person, typically their ex-partner, without their permission. Sometimes they upload those images to revenge websites. These postings may include offensive remarks about the subject, and the posters may link the images to the subject’s social media pages (e.g. Facebook, Linkedin) and may provide detailed information such as the subject’s name, address, telephone number and place of employment.

The purpose of revenge porn is to “humiliate and harass former lovers.” A study found that 10 percent of 18 to 54-year-olds threaten to post such images, with nearly 60 percent of those threats being carried out. Some 80 percent of revenge porn victims took the images themselves. It would seem that despite the risks, people naively believe that their loved ones will never betray them, and they continue to share explicit images. In anticipation of Valentine’s Day in 2013, one study found that 43 percent of men and 29 percent of women planned to send “sexy or romantic photos” to their partners to celebrate the holiday.

Perpetrators of domestic violence can use revenge porn to further psychologically abuse, blackmail, and/or compel the victim to remain in an abusive relationship. This article will focus on revenge porn with adults who consented to production but not distribution of these intimate images.

Impact Upon the Victim

It has been estimated that 60 to 70 percent of revenge porn victims are women. As a result of this privacy invasion, the victim’s relationships with others can be destroyed; they may lose or quit their jobs and be unable to find another one; they may be harassed by strangers; they may have to close down email accounts that have been flooded with abusive and obscene messages; they may suffer psychological harm, and some may resort to suicide, while others are stalked, assaulted or even killed.

It may be difficult or impossible to delete the images, which leaves the victims feeling permanently branded. Thus, there are serious emotional, mental and physical harms that may be suffered by the individuals depicted in these postings.

Legal Recourse

There is legal controversy surrounding revenge porn. Some academics have argued that since victims have been largely unsuccessful in civil lawsuits, criminal legislation is the better avenue. Others have debated if these injuries are better addressed by state or federal legislation. At present, slightly more than half of all the states in the United States have laws applicable to revenge porn. Twenty-six states have some form of revenge porn legislation, including 18 states that passed criminal legislation between 2013 and 2015 to address such conduct.

Civil Suits

 Victims of revenge porn have attempted to sue under tort claims, such as “appropriation, defamation, public disclosure of private facts, or intentional infliction of emotional distress,” but these claims, scholars point out, often fail.

With respect to civil suits, it is argued that they provide insufficient remedies, because they fail to do what the victims most want, which is to remove their images, which cannot be achieved due to the magnitude of dissemination; and to deter the perpetrators, who remain undeterred because they often have nothing to lose. Moreover, the victims may be re-victimized by highly publicized trials; the trials are expensive and therefore unaffordable for many; they are time-consuming; many defendants are judgment-proof so that the victims cannot collect any money even if they win; and it is difficult to meet the requirements of injunctions.

Even when a court order requires a defendant or website to remove the images, since they may appear on numerous sites, it may be impossible to achieve on a practical level. With respect to civil suits based on copyright claims, scholars claim that the instances when they can be brought are so limited, they do not provide a practical solution. They have noted that the best chance to succeed with copyright claims is when the victim took the photographs herself. There are few attorneys who work in this practice area, likely due to the unremunerative nature of victim representation, such that most revenge porn cases are taken on a pro bono basis.

While the majority of claims brought by victims of revenge porn are based on theories of tort, there have been attempts to use theories of contract to hold an Internet service provider liable for injuries inflicted resulting from the unauthorized distribution of revenge porn content.

In all events, it has been argued that civil remedies will likely not undo the damage to the victim’s “reputation, emotional stability, and personal safety.”

Criminal Suits

 Many legal scholars, legislators and advocates are “pushing” to criminalize revenge porn because they believe that it will serve as an effective deterrent, while some highlight the need to “punish harassment and the worst type of cyberbullying.” Criminal charges, it is argued, eliminate the financial burden that a civil case may carry for the victim, and can pose a threat to judgment-proof perpetrators. Before 2014, only New Jersey and California criminalized revenge porn in the United States; however, more states have since followed. And yet there is no consensus as to the best approach, with a split between states broadly criminalizing revenge porn, and those that hinge prohibitions on intent to harass or cause emotional distress.

In New York State, in the first case in which a New York court had considered criminal charges stemming from revenge porn, the defendant was accused of posting nude photographs of the victim, his girlfriend, to his Twitter account, and of sending those same photographs to her employer and her sister, without her consent. The defendant was charged with aggravated harassment in the second degree, dissemination of an unlawful surveillance image in the second degree, and public display of offensive sexual material.

The court held that defendant’s conduct, while reprehensible, did not violate any of the criminal statutes under which he was charged. New York, and other states, responding to the inadequacy of existing criminal statutes, has proposed legislation to specifically criminalize revenge porn. In New York, there is a proposed bill, which establishes the crime of non-consensual disclosure of sexually explicit images as a Class A Misdemeanor (proposed Penal Law Sec. 250.70,). It also establishes a civil cause of action for non-disclosure of sexually explicit images (proposed Penal Law Sec. 250.75). Other states, including New Jersey, have made it a felony to disseminate a sexually explicit photograph of someone without her consent. Criminal prosecutions still require the ability to locate the posters, bring them to trial and then to prevail at trial.

It has been argued that current and proposed laws, which criminalize revenge porn, do not address the “true harms,” as these laws fail to remove the photographs from the web. It is maintained that congressional action is the only way to remedy this issue as the Communications Decency Act (CDA), 47 USCA Sec. 230 (West 1998) grants broad immunity to Internet service providers for the acts of private parties.

Is Revenge Porn A Constitutional Right?

The biggest objection to criminalizing revenge porn are First Amendment issues of freedom of speech and freedom of the press, and, thus, there is a growing trend to narrow statutes in order to withstand First Amendment scrutiny. But the concern is not to narrow the statutes too much such that they become ineffective. Some scholars argue that revenge porn is not protected speech because it is obscene, and therefore falls under a categorical exception to the First Amendment.

Specific suggestions for the drafting of legislation to avoid violating the First Amendment have included the following: that laws criminalizing revenge porn should prevent dissemination of lascivious images of an identified subject without the subject’s consent and carefully define intent and consent; that laws criminalizing revenge porn should define sexually graphic images with sufficient specificity to avoid being overly inclusive but broadly enough to protect most victims; that laws criminalizing revenge porn should create exceptions to protect consensual pornography, nudity in art, and images that depict crimes or political misconduct; that laws criminalizing revenge porn should carefully restrict its time, place and manner rather than its content; and that laws criminalizing revenge porn should incorporate and define an appropriate right to privacy for sexually explicit images taken in the context of an intimate relationship.

At Maya Murphy, P.C., our personal injury attorneys are dedicated to achieving the best results for individuals and their family members and loved ones whose daily lives have been disrupted by injury, whether caused by a motor vehicle or pedestrian accident, a slip and fall, medical malpractice, a defective product, or otherwise. Our attorneys are not afraid to aggressively pursue and litigate cases and have extensive experience litigating personal injury matters in both state and federal courts, and always with regard to the unique circumstances of our client and the injury he or she has sustained.


Source: New York Law Journal





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