TPM Cafe: Opinion

In The Real World, Revenge Porn Is Far Worse Than Making It Illegal

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AP Photo

Humiliated, she closes her Facebook page, but not before her friends and family find out. She reads the personal attacks and is petrified when she sees that people are promising to stop by to see her. Then she Googles herself and the results are filled with thumbnail images and links to every website that has the photos. Let's say she's a recent grad looking for a job. Ask yourself--what's the first thing potential employers do these days? What would it be like to go to that interview, knowing that the guy on the other side of the desk has seen her? We're talking not just about the victim's psychological well-being, physical safety, and personal and family relationships, but also about long-lasting damage to her career and professional reputation.

Yes, it's "hard not to sympathize" with these real life women (though many blame the victim). If you consider this "speech" and you prize "free speech" above all else, be honest and admit that your only concern is an abstract ideal and the victims are just collateral damage. Don't pretend that they already have sufficient remedies.

In the real world, civil lawsuits are no remedy at all. Attempts to cast this as a copyright issue are absurd--but it's one of the only available legal avenues. It is not a good fit. She only owns the copyright if she took the pictures herself; if her now ex-boyfriend/ex-husband did, he owns it. Even if she does, she can't sue for infringement unless she first registers her photos with the U.S. Copyright Office. If she owns the copyright, she can demand that the website remove the photos. If she's lucky, the owner will comply. But the photos instantly spread all over the Internet, so even if she manages to get the photos off one website, Google still finds them.

If she owns the copyright, she can demand that Google remove the specific links from their search results. (If she doesn't own the copyright, it's not Google's problem.) She'll need to monitor the search results so she can start again when (not if) the photos appear elsewhere. Google will send the demand to ChillingEffects.org, which will post it online, where it, too, will appear in search results. In fact, Google will make it even easier by printing at the bottom of every page, "In response to a complaint we received under the US Digital Millennium Copyright Act, we have removed X result(s) from this page. If you wish, you may read the DMCA complaint that caused the removal(s) at ChillingEffects.org," and providing a direct link. Remember, Google has just removed the links from its search results, but it will show you exactly how to find them.

Invasion of privacy and infliction of emotional distress are remedies only against the person who posted the photos (if she can prove who that is). The website owners are immune under federal law, Section 230 of the curiously-named Communications Decency Act ("CDA"). Even if she knows who to sue and wins some compensation--which he probably can't pay--it won't remove the photos from the Internet or Google.

Apart from cost, many already traumatized victims are scared to file a lawsuit for fear of making things even worse. True story: when one woman sued PinkMeth, PinkMeth mocked her and "featured" her on its home page. PinkMeth supporters struck back with even more vicious personal attacks and by spreading her name and photos even more widely. Unable to identify the owners of PinkMeth, Shelby Conklin's attorney went after their Internet domain registrar. But when one domain was shut down, it popped up on another, then another, then just an IP address in The Netherlands. Whack-a-Mole. Eventually, PinkMeth's owners apparently tired of the game. Still, the entire sordid history remains on Google, and the photos are still out there.

As for existing criminal laws, involuntary porn falls between the cracks because it is new. Website owners are immune to state criminal prosecution (the CDA again). Child pornography laws rarely apply. It isn't extortion or blackmail unless the perpetrator was trying to get something from the victim, which is rarely the case. Prosecutors must have a defendant and evidence, and these cases can be very hard to prosecute. On Oct. 3, prosecutors dropped cyber-stalking charges against Holly Jacobs' ex-boyfriend. Now, he is attacking Jacobs for "ruining his life." Whether or not he was actually the one who posted Jacobs' photos, this emphasizes the unique problems that this new form of domestic abuse has created and the need for a comprehensive approach.

The problem starts with website owners' immunity under the CDA, which opened the door to this new involuntary porn business (and it is a business; the website operators make money off of this). CDA immunity was enacted not to protect free speech, but to shield operators of legitimate open Internet forums against liability for materials posted by other people. This was a valid concern, but hardly applies to people who deliberately set up websites to host involuntary porn, encourage and provide means for anonymous posting of such photos and personal identifying information, and profit from the abuse. PinkMeth, for example, required that the poster submit the victim's real name and links to her real Facebook or other social media page. Amending the CDA to strip immunity from such websites would go part of the way. New laws explicitly criminalizing unauthorized posting of nude photos are also necessary because existing laws do not apply. Search engines should be required to remove links to unauthorized erotic photographs regardless of copyright; an affidavit that the photos are of her and that the posting was unauthorized should be sufficient. (Search engines certainly could do this on their own, but they won't; without a copyright, Google refuses to remove such photos, claiming an infringement of its free speech rights. Google's "don't be evil" motto apparently has its limits. Ironically, Pink Meth's slogan was "A Little Evil for a Greater Good.")

Whether any proposed law is well-drafted is a legitimate question. But it is disingenuous to proclaim such laws "worse" than the problem because someone may hypothetically want to post nude photos of a public figure to show unfitness for office. The First Amendment's guarantee of free speech is not absolute. This is not merely "uncomfortable speech" and there is no difficulty differentiating between this and newsworthy stories.

Wrapping oneself in the First Amendment with a shrug of the shoulders while pointing to non-existent or ineffective remedies is a cop-out. Free speech advocates should work with victims and legislators to draft effective laws that protect legitimate speech. Public figures can be narrowly carved out to address theoretical scenarios. Public figures know what they're getting into. Young women don't sign up for that.

Matorin is an attorney in Wellesley, MA, focusing on intellectual property, business disputes, Internet and computer law, and online defamation. He has been featured in the Wall Street Journal and the New York Times, and has discussed the problem of involuntary porn on the Huffington Post's "HuffPost Live" show (where his frantic live search for a better headset was captured to the amusement of all and preserved for posterity). He can be reached at mmatorin@matorinlaw.com.

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