Technology seems to be forever changing the way we interact with each other and the world around us. In today’s digital age, it is not uncommon for two people in a romantic relationship to share explicit photographs with each other digitally. Unfortunately, the consensual sharing of such photos has also made it easy for an angry ex to post those pictures online without the consent of the other person or an unscrupulous hacker to access and post private pictures. Known as revenge porn, the practice is becoming increasingly widespread and poses a unique, often painful, challenge for those how find themselves victims. There are entire websites dedicated to revenge porn that often list the victim’s name and contact information. Victims are usually unaware their pictures have been uploaded to sites until they are notified by viewers or concerned family/friends. The damage is immeasurable. In addition to the humiliation of having private, intimate photos posted online without their knowledge, victims have lost jobs and been subjected to unwanted harassment from strangers.
Why aren’t operators of revenge porn websites or the contributors to them being penalized for what seems like an obvious criminal act? The problem is that, once again, technology has outpaced the law. Currently, only 12 states have criminal laws making it illegal to knowingly post such pictures online and many of those laws are facing legal challenges of their own by groups that claim such laws infringe on people’s first amendment right to free speech. Criminal laws provide victims with the best remedy, because they do not have the same financial and privacy burdens on victims that civil remedies often have and result in the quickest removal of embarrassing material.
Regulators are just beginning to tackle the problem by finding creative way to use existing laws. Last Thursday, the Federal Trade Commission reached a settlement with Craig Brittain who operated a pornographic website. The FTC complaint alleged Brittain obtained nude pictures and videos of people in a variety of nefarious ways and posted them to his website with the person’s contact information without their knowledge or consent. The settlement did not impose any financial sanctions but mandated Brittain stop operating the site and the content be deleted. In the future, Brittain must show the FTC upon request that he has received affirmative express consent from each individual who has a picture with an “intimate part exposed.”
Federal prosecutors are using online stalking statutes to pursue revenge porn cases. They have also used statutes prohibiting the attempt to access another person’s online accounts or computers to bring charges against individuals who may not have been the recipients of the photos they are posting. Federal prosecutors in Los Angeles have filed charges against 10 people in the last five years, including former financial advisor David K. Elam II. Elam was indicted by a grand jury in June on charges of aggravated stalking, aggravated identity theft, and unauthorized access to a computer. He obtained pictures and videos of his former girlfriend without her knowledge or consent and used the pictures to create fake accounts for her on several online dating sites encouraging people to contact her for sex. Elam also sent links to the videos he posted to the woman’s family and classmates. After she discovered the pictures and videos, she was able to have them removed from the half dozen websites they had been posted to by registering them with the Copyright Office and bring a copyright infringement action.
Earlier this week, the self proclaimed “king of revenge porn” Michael Hunter pled guilty in Los Angeles to charges of hacking and identity theft. The complaint alleged that Hunter paid a professional hacker to access the email accounts of at least seven people in an effort to obtain more material for the site. The illegally obtained pictures were posted on his site alongside explicit photos from jilted exes. The pictures were often posted alongside the name and contact information of the person pictured. Despite California’s new revenge porn laws, it was the FBI’s investigation into the computer hacking allegations that ultimately led to the charges against Moore. Under the agreement, Moore faces two to seven years in federal prison.
In the absence of criminal laws to effectively combat the problem, civil remedies have filled the void, offering financial damages to the victims and ensuring the photographs are removed. There are quite a few torts available to attempt to redress the damages caused by the posts that are often combined with a complaint of copyright infringement. If the photograph was a self-portrait, the victim automatically owns the copyright without having to register it. However, if it was taken by someone else, the victim must register the images or videos with the Copyright Office adding another insult to injury. A copyright infringement suit is unlikely to net damages so many victims combine the suit with an invasion of privacy claim. A copyright infringement suit is unlikely to net damages so many victims combine the suit with an invasion of privacy tort. In the civil case brought against Elam, the victim sued for intrusion of privacy, intentional infliction of emotional distress, negligence, and negligent infliction of emotional distress.
If you or someone you know has any questions about revenge porn remedies under Ohio law or more general questions about the law and technology, call W. Joseph Edwards at 614.309.0243.
