Getting even: empowering victims of revenge porn with a civil cause of action.

• Author: Pollack, Jessica M.
• Position: NOTES

1. INTRODUCTION

   When the "king of 'revenge porn'" Hunter Moore faced seven years in prison and a half million dollar fine, it was not because he plead guilty to California's criminal revenge porn law or any similar civil suit, but rather, he plead guilty to federal hacking and identity theft charges. (1) While some sort of justice is done by Moore's conviction, society should be alarmed that the founder of IsAnyoneUp.com (2)--one of the first and most notorious revenge porn websites--could only be held liable for his actions via laws that have virtually nothing to do with revenge porn itself. Technological advances and the Information Age have taken us from black and white photographs to real-time imaging in half of a century (3) and as a result, gone are the days in which reputational damage can easily be contained. Society has had to adapt to the Hunter Moores of the world and while many laws have kept pace, those regarding revenge porn are severely disappointing.

   Let us start with a scenario (4) : Romeo believes that he and his star-crossed lover Juliet would rather die than live without each other, but one day Juliet decides that the family feuding is too much and she leaves Romeo. Instead of downing the poisonous vial, Romeo determines that the appropriate response is to post on the Internet sexually explicit photographs of Juliet that were consensually taken in private between the couple, and expected to stay between the couple. Romeo knows this will mortify Juliet. Further, Romeo spitefully uploads the photographs to a larger website--created specifically for this purpose--so that others may view them, along with Juliet's name, address, and social media sites. Romeo tells Juliet that if she wants the images taken down, she will have to pay the website handsomely for it. At this point, it doesn't matter if the images are taken down because Juliet's family, friends, and employer have already been made aware of the compromising photographs, bringing shame to the entire Capulet family. Juliet is consistently harassed by people contacting her who got her information from the website and she loses sleep at night, fears for her safety, and has started therapy. Juliet begs Romeo to take the photos down and finally resorts to legal action, but either she lives in one of the sixteen states that do not recognize a cause of action for her issue, (5) or Romeo has rightfully claimed First Amendment protections in states that do recognize this suit. (6) Society labels Romeo as a vindicated man for his heartbreak and Juliet as a harlot who should have known better. Juliet is told that she either should have never taken the photographs in the first place or should have stayed with Romeo so that this would have never happened--after all, this is her fault, right? (7)

   This situation, most commonly known as "revenge porn," (8) can happen to anyone, anywhere. (9) While definitions of revenge porn vary widely across the United States, this Note defines it as the nonconsensual dissemination of sexually explicit photographs of another, taken or given consensually between the individuals with the reasonable expectation that the photographs would remain only between those individuals. (10)

   Both the public and private sector have been slow to respond to the notorious revenge porn phenomenon. Private sector online platforms, such as Twitter and Reddit, took action in 2015 to explicitly ban revenge porn from their sites; (11) however, not all websites have followed suit and some people have even built online empires by capitalizing on scorned lovers thirsting for payback. (12) The federal government has yet to enact any policy outlawing revenge porn, and about two-thirds of the states have taken action while the other one-third may have legislation in the works, but no laws yet. (13) State laws that do address this issue vary incredibly, with some states making revenge porn violations a misdemeanor (14) and others a felony carrying heavy fines and jail time. (15) This lack of continuity holds offenders to different standards across the country, thus lowering the gravity of the offense and creating additional issues--such as lack of notice--that permit offenders to escape liability altogether. (16)

   One theme is consistent among these laws, though: they all create a criminal cause of action against revenge porn offenders. (17) Utilizing a criminal approach to address revenge porn has led to a plethora of other issues, however, the most common being a First Amendment violation of free speech. (18) Some states have attempted to cure this issue by drafting their revenge porn statutes very carefully, but as discussed in Part II, doing so does not necessarily address the inherent constitutional violations. (19) This Note believes these First Amendment arguments to be valid and does not contend otherwise.

   This Note does argue, though, that because of the valid First Amendment violations present, criminalizing revenge porn is not the best method by which to seek redress against an offender, but rather, states should enact civil causes of action specifically against revenge porn. Further, this Note argues that an affirmative consent standard should apply, in which only the victim's consent to distribute each image would be sufficient to permit another to do so. This affirmative consent approach would act as a means by which to encourage potential disseminators--if they wished to disseminate the explicit photographs of another--to take appropriate steps to avoid liability for themselves and harm to their victims. This Note proposes that failure to take the appropriate steps should trigger a civil cause of action, which ultimately provides a practical approach that empowers victims as individuals--rather than as members of society at large, as would be the case in a criminal cause of action--to pursue and receive adequate justice. To expand upon these concepts, this Note uses New York State as a model.

   Part II discusses criminal revenge porn statutes further and why they are problematic against the First Amendment. Part III discusses why current New York State law, both civil and criminal, is inadequate to provide revenge porn victims with justice. Part IV(A) argues that creating a civil cause of action for revenge porn specifically is the appropriate response to the revenge porn issue, and Part IV(B) advocates for an affirmative consent standard in furtherance of the civil cause of action.

2. CRIMINAL REVENGE PORN STATUTES AND FIRST AMENDMENT IMPLICATIONS

   As previously stated, a universal definition of "revenge porn" does not exist. (20) Moreover, the definitions of revenge porn that do exist are vastly inconsistent. (21) The federal government and its agencies have not taken action against revenge porn, leaving the states with immense discretion on this issue, and because of significant pressure received from the anti-revenge porn lobby, many states quickly enacted knee-jerk reactionary criminal statutes in order to not be the last state to take action. (22) As a result of the haste, every single statute in the thirty-four states and the District of Columbia that have enacted revenge porn-like statutes is different in some respect, and most have yet to be tested for durability. (23) Some statutes categorize the act as a misdemeanor; (24) others a felony. (25) Many include an "intent to harm" element (26) while others find it irrelevant. (27) Further still, some have been criticized for being vague, overbroad, and a significant impediment to the First Amendment, especially regarding media, education, and public interest providers. (28)

   While some groups such as the American Civil Liberties Union ("ACLU") and the Motion Picture Association of America ("MPAA") are vocally opposed to criminal revenge porn statutes due to what they view as inherent First Amendment violations, (29) those at the forefront of the anti-revenge porn lobby support only the criminalization of revenge porn. (30) Criminalizing an act in general may have its advantages; (31) for one, some believe that a potential offender may be more strongly deterred from committing an offense if that person knows that he or she could serve jail time and a conviction could remain on his or her permanent record indefinitely. (32) Further, prosecuting an act criminally can provide access to the justice system for people who may not have the means to pursue a suit civilly, and can also provide victims with a sense of justice even if a perpetrator is judgment-proof. (33)

   Despite these potential advantages, one potential disadvantage of criminalizing an act--and which is problematic for purposes of this discussion--stems from the significant difference between a criminal and civil case, which is the nature of the parties. (34) When a criminal act is tried, the two parties involved are the government on behalf of society as prosecution and a private citizen as defendant. (35) When a civil suit is brought, the two parties involved are a private citizen as prosecution and a private citizen as defendant. (36) As discussed below, because of the nature of the parties, First Amendment issues are only implicated in criminal, but not in civil, proceedings.

   The First Amendment, in relevant part, states: "Congress shall make no law...abridging the freedom of speech." (37) When the government criminalizes speech and has the ability to prosecute that speech as a violation against society, a private citizen's First Amendment rights may be infringed. (38) In the context of criminalizing revenge porn, state statutes have given the government the authority to prosecute a person based only on the content of his or her "speech" (i.e., sexually explicit photographs), which is an unconstitutional restriction. (39) While most content-based restrictions are unconstitutional, the United States Supreme Court recognizes certain categories of speech that by their very nature are "unprotected" and...