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Monday, December 16, 2013

Did Your Ex Post Your Nude Photo Online?

In Colonial America, public shaming was a popular punishment, evoking imagery of men and women locked in the stocks in the public square or adulteresses branded with a scarlet letter “A”. Public shaming has resurfaced, but today the public square is the Internet, and the shaming is done not by government as punishment but by sleazy businesses for profit. These sites display embarrassing photographs of individuals and then charge them a fee for their removal.

The two main variations of exploitation Web sites are revenge porn sites and mugshot sites. Revenge porn Web sites solicit nude photographs of ex-lovers or former friends. Mugshot sites download their photos from police Web sites and databases. Revenge porn sites argue they're only displaying what others have uploaded and thus fall under the safe harbor of a federal statute, the Communications Decency Act (CDA), which protects Web site owners from defamation claims for materials posted by others. The mugshot sites claim, while they might be the ones posting the images, mugshots are public records, freely accessible under state Open Record Laws.

No one wants family, friends, or prospective employers to stumble across their mugshot or nude photos on the Web. That’s why these exploitation Web sites charge people to remove the photos they appear in. Exploitation sites are like modern day grave robbers who dig up people’s shameful pasts and charge to rebury the skeletons. You might think charging to remove humiliating images displayed by these sites is extortion, but since the site operator isn't applying force or coercion, it doesn't meet the legal definition of extortion. But even if removed from one exploitation site, the picture may pop up on another, leaving the aggrieved individual trapped in a game of “Whack-A-Mole”.

The adage “The Internet is forever” rings true: The images may still appear in search engine caches; on mirrored sites; in Web archives; or worse, have gone viral, being posted on multiple blogs, Web pages, and social media. For example, The Lubbock Lineup Facebook page digitizes public humiliation, juxtaposing mugshots with “selfies” from an individual’s Facebook page under the heading “I Promise I Look Much Better on Facebook”.

The intent of revenge porn sites is to embarrass the victim. Some sites maximize the humiliation by posting the person’s name and screenshots of, or links to, her social media pages; including contact information and school or workplace, or allow visitors to post anonymous harassing comments. Even more humiliating, because they compile so much information on the victim, revenge porn sites often pop up at or near the top of a Google search for an individual’s name — visible to family, friends, classmates, co-workers, customers, clients, and current or potential employers. The result can be ruined reputations and careers. Victims also face the threat of stalkers and harassment.

While the site owners are protected by the CDA, there are other legal strategies victims might employ. Under federal copyright law, if the photo was taken by the victim (a “selfie”), then she’s automatically considered the copyright holder with exclusive rights to distribute and display the photo. The CDA doesn’t bar a copyright infringement claim, so she could force the site to remove the photo by sending it a DMCA takedown notice. If the site fails to do so, she can sue for infringement. The downside to this approach is, it’s only available to the one who created the work (the photographer). If anyone other than the victim, like an ex-boyfriend, took the photo, she can’t claim infringement. Also, although the takedown notice should result in the photo’s removal, she’ll only be entitled to damages if she had registered the photo with the U.S. Copyright Office prior to the infringement. This is impractical, as one is unlikely to submit a copy of a humiliating photograph to the Copyright Office to be archived indefinitely under her name in the Library of Congress, or to suspect a particular photo will be published online until after the fact.

Some revenge porn sites add personal information, screenshots, or links to victims’ social media accounts to the content uploaded by third-parties. Taking a hand in developing the content might destroying their CDA immunity.

Of course, victims can sue the person who posted the offensive photos for invasion
of privacy and seek monetary damages, but they'd have to be able to identify the poster and prove he uploaded the photos. The downside is, the victim, as a plaintiff in a civil suit, would be named in the public record with a description of the posting, and a judgment against the poster would have no effect on the Web site, which might continue to display the photos.

California passed a law in late 2013 making posting revenge porn a misdemeanor
punishable by a $1,000 fine or up to six months in jail, but it applies only to photos taken by others (not to selfies sent to an ex) and posted “with the intent to cause serious emotional distress” (thus raising a possible lack of intent defense). The law doesn’t target revenge porn sites, which remain protected by the CDA.

Last week, California prosecutors charged a man, not under the state’s new law, but with 31 felony counts of conspiracy, identity theft, and extortion for operating a revenge porn site. The year-old site boasted more than 10,000 “nude and explicit photographs of others without their permission” according to court documents. The man was charged with obtaining identifying information with the intent to annoy or harass because his site required the victim be identified by name, age, and other information. He charged up to $350 to remove the photos, receiving “tens of thousands of dollars.”  

 To learn more about revenge porn sites and mugshot sites, buy my new book, Issues in Internet Law: Society, Technology, and the Law, 8th Edition.

Issues in Internet Law

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