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3 Ways Revenge Porn Is Already Illegal

As legislatures across the country try to enact new laws to safeguard people’s explicit photos, here’s how you’re already protected

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From criminal violations to copywright law, revenge porn is already against the law.

Elizabeth Dalziel/AP

Earlier this month, New York City council members became the latest lawmakers to introduce legislation targeting “nonconsensual porn” (NCP), popularly known as “revenge porn” – the distribution of explicit images of a person without his or her consent, often by a vindictive ex. Many states have passed similar legislation in recent years, and in July, Rep. Jackie Speier (D-Calif.) introduced a bill that would make NCP a federal crime punishable by up to five years in prison.

It’s a good thing that the scourge of revenge porn is getting attention from politicians, but something unfortunate tends to happen in the discussion of proposed NCP laws. Headlines proclaim a given law will “make revenge porn a crime” or “make revenge porn illegal.” Reputable outlets print things like, “Revenge porn is one of those things that sounds like it must be illegal but isn’t.” It almost sounds as if there aren’t already laws that prohibit using explicit pictures of your body without permission.

Wrong. NCP violates all kinds of laws, even in states without statutes specifically targeting it. This should be common knowledge and it’s a big problem that it isn’t; if would-be perpetrators don’t know they are subjecting themselves to criminal and civil liability, they won’t be deterred. And if victims keep hearing from the media that there is “nothing they can do,” they are likely to feel hopeless and ashamed rather than taking action quickly.

This is not to say that our existing laws are perfect and new ones aren’t needed to fill in the gaps. Whether we should address revenge porn by prosecuting and suing perpetrators under existing laws or whether new laws are needed is a matter of debate among advocates and lawyers. But those in either camp should be alarmed by the widespread misperception that it is open season on exes under current law.

There’s no federal law explicitly against it” doesn’t mean it’s legal. Lots of things violate state criminal or civil law without being federal crimes. Nor does a state not having a law specifically targeting NCP mean it is “perfectly legal” there. What laws are violated by the sharing of sexual images without consent depends on the jurisdiction and the specific facts of the case, but make no mistake, perpetrators risk imprisonment and massive financial liability – in every state.

Criminal violations under existing law
NCP encompasses a range of acts that may violate state or federal criminal laws concerning harassment, stalking, blackmail, child pornography, extortion, surveillance, hacking, fraud, wire fraud, unlawful use of personal identifying information, identity theft and more.

In fact, the biggest wins in the battle against revenge porn haven’t been convictions under new statutes. Revenge-porn website proprietor Hunter Moore is serving a two year sentence after pleading guilty to unauthorized access to a computer and identity theft. His fellow NCP entrepreneurs Kevin Bollaert and Casey Meyering got eight and three years, respectively, for extortion and other crimes. Mere contributors to such sites have gotten jail time as well.

Advocates for new revenge porn laws often dismiss the idea of using existing criminal laws, such as harassment and stalking, because those laws may not apply in all situations or police may not take complaints from victims seriously. That is indeed the reality, but those aren’t problems unique to NCP.

What law applies to harmful conduct in a particular jurisdiction may not be immediately apparent, and police have lots of incentives to avoid dealing with criminal complaints – you often have to fight to even get police to take a report of things that are very obviously crimes. Suggesting to the public that the bad or disingenuous legal judgments of cops who have blown off revenge porn victims are correct can only discourage victims from reporting and demanding police do their jobs. To the extent that the problem is under-enforcement of existing criminal laws, enacting new ones isn’t likely to help.

Civil torts
Publishing NCP is also generally a tort – a violation of civil law for which the victim can sue for damages – such as intentional infliction of emotional distress, public disclosure of private facts, false light, and intrusion.

But prominent anti-NCP activists often claim tort law provides little recourse because lawyers are expensive and victims haven’t succeeded in civil court. It’s true that lawyers are expensive, but if more vindictive exes were afraid of being sued, fewer victims would need to retain them. And megafirm K & L Gates has a program providing free legal services to victims of revenge porn across the country.

In fact, tort suits have been quite successful. A victim who sued Bollaert won a $385,000 judgment. But it’s not just the entrepreneurs getting hefty judgments, ex-boyfriends have been liable to the tune of $25,000 to $500,000. (After publishing a sex tape starring the ex of his rival Rick Ross, rapper 50 Cent was hit with a $7 million dollar judgment.)

Harms to reputation have traditionally been handled in civil court, and that may be the best place to seek recourse for many victims. The victim has greater control in civil court as a plaintiff than as a witness in criminal court – and that’s only if she manages to get the state to bring a case. Even if we get new criminal laws against revenge porn, there’s no guarantee they’ll be widely enforced – investigations and prosecutions take resources authorities may not be willing to shift away from other crimes.

And in many instances, litigation won’t be necessary. Even kingpin Hunter Moore was known to take down pictures after hearing from a lawyer, and he ultimately took down his site prior to being criminally charged because he couldn’t deal with the “legal drama.” Instead of telling victims they have “little legal recourse,” let’s make sure everyone understands how much legal drama perpetrators can bring upon themselves.

FTC investigations, copyright violations and beyond
If the victim took the explicit photo herself, revenge porn may be a copyright violation. Is it ideal for victims to have to register their pics with the copyright office? Obviously not, but no one ever said dealing with the fallout from an abusive partner would be easy.

Administrative law provides yet another approach. The Federal Trade Commission filed an administrative complaint against another proprietor of a cyber exploitation website for unfair business practices. He entered into a consent judgment requiring him to take down his site, never post nude photos without consent again and to tell future collaborators about his arrangement with the FTC. And that judgment does not mean he can’t be criminally prosecuted or sued civilly.

These aren’t silver bullets, but the point is that there is no shortage of legal tools prosecutors, civil attorneys and regulators can use to go after perpetrators – so those publishing revenge porn should be afraid.

Still, advocates argue that new criminal laws – and a federal law in particular – will better deter perpetrators by sending the message that revenge porn is a serious crime that won’t be tolerated by society. That is true. But since we don’t have that law yet  – and there are reasons to fear we won’t get it or it will be challenged in court on First Amendment grounds – let’s not undermine the deterrent effect of the law we already have.

Revenge porn is illegal. Don’t do it. If someone does it to you, or threatens to, you need to move fast to preserve evidence, send take down notices and get a lawyer to explain the world of legal hurt that could befall the offender. Don’t be tricked into believing there’s nothing you can do.

In This Article: Crime

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