Monday brought celebration for many, when a California man who posted nude pictures of his ex-girlfriend became the first person sentenced under the state’s “revenge porn” law. It’s a good first step, but some think criminalizing is the wrong stance.
“Revenge porn,” is essentially when publically diseminating photos of a sexual nature, and got its name from the (sadly) common practice of disgruntled exes who took to the web to post personal photos to the Internet as “revenge” for being broken up with. Since the practice started gaining traction, more and more “revenge photos” have been taken through hacking, and sometimes even invite visitors to post personal information such as full names, profiles, and addresses.
The case at hand started when Noe Iniguez allegedly posted derogatory comments under an alias to his ex-girlfriend’s work’s Facebook page about a year ago. He eventually escalated to posting nude photos to the page, calling her a “drunk” and a “slut,” and urged her employers to fire her. After a seven-day trial, Iniguez was found guilty of having violated California’s revenge porn statute, and was sentenced to a year in jail, domestic violence counseling, and 3 years of probation.
Until recently, the only recourse that victims could seek was to try to find a lawyer who could adapt preexisting statutes to the wild worldwide web–which isn’t always easy. Even if you can find a lawyer who’s willing to defend you, Travis Crabtree at eMedia Law Insider says you could still be left without any precedent to guide your case:
As a victim, you can bring civil claims like invasion of privacy, intentional infliction of emotional distress and copyright claims if you took a selfie because the copyright usually belongs to the photographer and not the subject. But, these claims are expensive to bring and there are no guaranties because a lot of people blame the victim for having nude pictures in the first place
The California law prohibits posting nude photographs online with intent to cause emotional harm. California is one of 13 states to enact revenge porn laws since 2013, but it is by far the most narrowly written. As Joe Bahgat writes on Internet on Trial, it leaves the law with its share of loopholes:
To a layperson, the language of the California statute might seem pretty straightforward; after all, it has the important key words—”photograph or record,” “intimate body parts,” agree that the image be private.” But because the phrase “with the intent to cause serious emotional distress” acts as a limitation on who can be found guilty of this crime, it also leaves a lot to be desired in terms of the level of culpability (a/k/a mens rea) that has to be proven by the prosecution. Also, because this is a criminal statute, the burden of proof is guilt beyond a reasonable doubt, which is the highest standard, and can be very difficult to prove as it relates to the perpetrator’s state of mind at the time of the act.
In the case of Iniguez, it’s clear that there was intent to cause serious emotional distress, but others might not be as lucky.
It’s a strange catch-22 that lawmakers find themselves in enacting language around Internet law: go too specific and your law can’t protect anyone (California’s law had to be expanded in August to include selfies taken by the victims)—or, if you go too broad, the bill could potentially be used against a reporter who, say, published screencaps of Anthony Weiner’s more infamous tweets.
Which is exactly what happened in Arizona, when a federal district court judge blocked enforcement of the state’s revenge porn law, after complaints from the ACLU that it was too broad. The statute took a strong stance on revenge porn–classifying even a first-time offense as a felony–but the breadth of the language criminalized historians, booksellers, news photographers, and more.
Even the language of the California statute, which would only charge violators with a misdemeanor, has raised concerns of the ACLU, who worry that such laws could violate free speech rights. Some have even expressed concerns that the law wouldn’t survive a First Amendment challenge in higher courts.
But if it’s not criminalization, what’s next? Bahgat believes that instead of criminalizing, which opens itself up to tricky wording and loopholes, there needs to be a more effective avenue for victims to access the justice system–and more incentive for attorneys to get involved:
A big reason behind that is that there’s rarely a way to collect meaningful compensation from revenge porn lawsuits. Attorneys can’t take these cases on a contingency basis because the defendants typically don’t have any money to take. Assuming you file suit, and win, you’re left with a judgment that you can’t collect. Not to mention the fact that it costs money just to file a lawsuit in the first place, and then there are all kinds of expenses that have to be paid before you can even have a chance at a jury trial. Who’s going to pay those expenses?
New Jersey is known for having one of the toughest consumer protection laws in the nation. Merchants who violate New Jersey’s Consumer Fraud Act are liable for treble damages, plus attorney’s fees and court costs. That makes it easy for attorneys to take those cases, with little out-of-pocket required from the client. If legislatures crafted similar remedial statutes proscribing revenge porn, it would at least open the courthouse doors to its victims. Admittedly, fee-shifting statutes, alone, wouldn’t solve the problem of judgment-proof defendants; that can be an issue in consumer fraud litigation also. But if there were statutes and court rules in place to make it a less risky proposition for attorneys to take revenge porn cases, we’d see an uptick in litigation, which, in itself would help serve as a deterrent to would-be perpetrators.
As this continues to be a perplexing issue for the courts, there’s much people can do on their own to protect themselves. As Jessica Kaufman and Aaron Rubin write for Socially Aware:
According to WomenAgainstRevengePorn.com, the first step to mitigating the damage of revenge porn is to establish more of an online presence. Although this may be counterintuitive, it is actually a logical approach: one of the biggest harms of revenge porn is that a friend, family member or employer will find nude photos when entering the victim’s name into a search engine. By opening Facebook, Twitter, Pinterest and Instagram accounts under his or her name, a victim may be able to move the revenge porn photo to a lower position in search engine results.
Because nude photos tend to be spread quickly on the Internet, WomenAgainstRevengePorn.com also encourages victims to use Google’s reverse image search engine to find all websites where the victim’s photos may appear. After taking careful note of all locations where such photos appear, victims are encouraged to file police reports.
They continue that as long as folks have libidos and an Internet connection this problem won’t be going away any time soon. We’ll just have to see how the lawmakers respond.