Still have a risque selfie from an ex-significant other saved to your phone or computer? In 13 states, posting it online could come with huge penalties and even a prison sentence.
In recent years, the popularity of “revenge porn” has grown at alarming rates. This is defined as any sexually explicit material posted online without the consent of the person depicted within — often the poster’s former wife or girlfriend.
The most famous example of a revenge porn website is the now-defunct IsAnyoneUp.com, but these images can also be found on sub-Reddits or on Tor networks in the deep web.
Hunter Moore, who founded IsAnyoneUp.com, was charged with hacking rather than publishing the images themselves. Currently, there is no federal law against publishing revenge porn.
“The patchwork of semi-effective laws being used to combat Revenge Porn urges an immediate change to U.S. Copyright Law or to the 1996 Communications Decency Act (CDA), or the need for a new federal criminal statue to stop this relatively new internet scourge,” said Ben Klosowski, Esq., Registered U.S. Patent Attorney for Thrive-IP.
Victims who have had their pictures posted online without their consent often feel helpless and may worry about their reputations. What was meant to be an intimate moment shared between partners is now on the internet for the world to see, and often their personal information is also included with the images, putting them at risk for harassment from stalkers.
But one group of attorneys is fighting back against this particular type of crime, arguing that it violates copyright law in cases where victims photographed themselves.
The Cyber Civil Rights Legal Project have so far helped almost 100 victims of revenge porn get their images taken down from adult websites.
The group estimates that 80% of such images have been taken by the victims themselves, and if a porn website refuses to remove the images, they can be sued along with the defendant’s former partner.
But there is a catch for victims: if they argue that the case is a matter of copyright, like with a selfie, then they must register the offending image with the U.S. Copyright Office in order to fight the case. This can create problems for victims who would like to forget the images ever existed.
“Due to free speech and the CDA’s big loophole – that website owners aren’t liable for content submitted by users – victims have limited recourse to force a website to remove a victim’s picture,” said Klosowski. “The victim might publicly register his/her photograph with the U.S. Copyright Office in order to trigger remedies under U.S. Copyright Law. But this has the paradoxical drawback of publicizing the very thing that the victim wants to remove from the public domain.”
Many intellectual property attorneys, who frequently battle infringement of trademark, copyright and patent laws, can advise victims of their rights if someone uses a selfie (nude or not) without prior consent.
Whether or not the picture is a self portrait (or a video filmed by the victim), those who find their images online without their permission are able to sue and have won cases in the past. One woman in Texas was awarded $500,000 for emotional distress after her ex placed her sexually explicit photo on the internet.
While Texas doesn’t have any laws on the books regarding revenge porn, 13 other states do, including Alaska, Arizona, California, Colorado, Georgia, Illinois, Maryland, New Jersey, Idaho, Pennsylvania, Utah, Virginia and Wisconsin.
Illinois joined the list this year by passing some of the strictest legislation regarding revenge porn yet. The law will go into effect on June 1, 2015.
Posting such images constitutes a Class 4 felony punishable by one to three years in prison, a fine of up to $25,000 and restitution to the victims. The law ignores the poster’s intent and focuses solely on the victim’s distress.
“The Digital Millennium Copyright Act or the Communications Decency Act ought to be changed immediately to catch up to virtual reality,” said Klosowski.
Pictures that are posted not out of revenge, but as the result of hacking a victim’s electronic devices, also carry the same punishment.