Revenge porn.
One would think these two words would never be grouped together in modern society and certainly not in a manner that would be considered legal. Revenge porn not only exists, but it falls into a legal gray area that makes it difficult to remove 
the images from websites. With our revenge porn removal process, we’ve developed an out of the box strategy that often puts an end to the nightmare.
The Situation
You are browsing one day online and decide to perform a Google search for your name. The fourth search result catches your eye. You click on to it, and a page pops up with an image of you naked. You quickly realize the only other person who has the image is someone you dated in the past. They must have posted it on the website.
Humiliation.
Embarrassment.
These are just two of the emotions you will feel knowing these images are online for anyone to see.
The two immediate questions that typically come to mind are:
- Is it legal for sites to post these images without my consent?
- How can I get these images taken down?
Section 230
How can sites get away with publishing revenge porn images? Section 230 of the Communications Decency Act provides the answer. The two key paragraphs of Section 230 read:
(b) Policy – It is the policy of the United States –
(1) to promote the continued development of the Internet and other interactive computer services and other interactive media;
and:
(c) (1) Treatment of publisher or speaker –
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.[Read Code Section Here]
To prevail in a lawsuit, the party bringing the legal action must assert a particular legal theory and then prove the elements of that theory. The traditional legal claims that apply to a revenge porn situation require the suing party to prove the website in question is a “publisher” of the offending images. This publisher element is a major problem. Section 230 states no website “shall be treated as the publisher…” Houston, we have a problem because our legal claims are going to be dismissed by the courts.
Fortunately, claims brought under copyright law are not precluded by Section 230.
Revenge Porn Selfies
Selfies constitute the majority of images posted to revenge porn sites. Selfies are, of course, images a person takes of themselves. This personal aspect is a critical characteristic from a copyright perspective.
Under copyright law, the copyright ownership of a fixed, tangible work of original authorship vests in the person who creates the work. With a selfie, the creator of the work is the person taking the picture of themselves. If anyone publishes the image without the permission of that person, they are committing copyright infringement.
An example can clarify the copyright situation. Tom and Mary are in a relationship for five years. Tom comes to believe Mary is cheating on him. He ends the relationship in a rage. Tom then uploads a number of intimate selfies Mary sent him during the relationship to a website. Because Mary took the photos of herself, she is the owner of the copyright associated with the images. Tom and the site in question are infringing on her copyright. This infringement can be leveraged to force most websites to remove the offending images.
The Digital Millennium Copyright Act of 1998 [“DMCA”] was drafted to address copyright issues online. The law contains a safe harbor provision that gives websites immunity from copyright infringement claims based on content uploaded by users of the site. For the purposes of this article, this effectively means revenge porn sites cannot be sued directly for infringement. However, there is a catch.
To avoid being sued, website operators must create a procedure for copyright holders to file complaints. When a complaint comes into their DMCA agent, the site must then remove the images. If the site does not take down the pictures, it can be sued for copyright infringement. As you can imagine, most sites remove the photos.
Revenge Porn Laws
Although there is no federal revenge porn law, many states are rushing to pass such laws. As of September 2014, states enacting such laws include:
- Arizona
- California
- Colorado
- Delaware
- Georgia
- Idaho
- Maryland
- New Jersey
- New York
- Pennsylvania
- Texas
- Utah
- Virginia
- Wisconsin
While these laws receive positive media treatment, there are serious questions as to their constitutionality. The core conflict is with the First Amendment and involves a discussion far beyond the scope of this article. What we can clearly state is there is no definite answer to the constitutionality question nor will there be for three to five years as the topic works its way through the legal system. Three to five years is a long time to wait for the removal of your nude images from the web.
Other Forms of Revenge Porn
Is the copyright infringement strategy for dealing with revenge porn viable where the image in question is not a selfie? Simply put – no. If third parties take the photos, the person in the pictures does not own the copyright and thus has no right to make any copyright claims.
Complexity
Using copyright to remove intimate selfies from revenge porn sites is an effective legal strategy. That being said, the removal process is complicated, and there are potential drawbacks a client must weight before deciding to move forward.
Have a problem with revenge porn involving selfies? Contact me today for a free consultation today.
Richard A. Chapo, Esq.