California’s Revenge Porn Statute: A Start but Not a Solution

Susan, a professional woman in her 30s, met a man she thought she’d ultimately marry. Their relationship was sufficiently intimate that she sent him a naked photo of herself. When she caught him cheating, she broke up with him. He took revenge by posting that selfie on a revenge porn website, along with her name, the name of her town, and her social media contact information. She received messages from complete strangers asking for more naked photos. As she went about her daily life, she was afraid that one of those men would stalk her. She worried that her co-workers might have come across the photo. She knew that if she applied for a new job, that nude photo would come up in a Google search of her name. She’d been branded with a modern Scarlet Letter.

Across the Web, thousands of people attack their exes by posting disgusting comments about them, warnings not to date them, or nude photos of them. On October 1, California Governor Jerry Brown signed into law a bill criminalizing what has become known as revenge porn. The law assesses a thousand dollar fine in a narrow situation. It is a misdemeanor for a person to photograph “the intimate body part or parts of another identifiable person, under circumstances where the parties agree or understand that the image shall remain private, and the person subsequently distributes the image taken, with the intent to cause serious emotional distress, and the depicted person suffers serious emotional distress.”

But the law has serious limits. The law wouldn’t  help Susan because it doesn’t cover selfies; it would only apply if her boyfriend had taken the photo and then later posted it. Even when an ex-boyfriend did take a photo and post it, it would be hard for the woman to prove that their understanding was that it would remain private. Didn’t she know there was at least a chance he was going to show it to his friends? And the requirement that he must have “the intent to cause serious emotional distress” is both hard to prove and too narrow. A man might evade punishment by claiming that by posting the photo he was just trying to brag that his girlfriend was hot. Or what if they were law students competing for the same job and he said he posted it to reduce her chances of winning the job? That wouldn’t be covered by the law.

And while the men who posted nude photos of their exes could be prosecuted under the law, it would provide no remedy for the women who want to get their photos removed from the web. Nude photos posted on one revenge porn site are often re-posted on dozens of other sites. A particular ugly or revealing photo might be replicated in hundreds of places on the Web.

Lori discusses revenge porn in a television interview.

A state law, such as that in California, can’t reach the main offenders—the websites that host revenge porn. A federal law adopted in the infancy of the Web, Section 230 of the Communications Decency Act, says that interactive computer services are immune from the types of suits for defamation and invasion of privacy that can be brought against traditional publishers. That makes sense with providers such as Comcast and websites such as Facebook (why should they be sued if I defame you in an email or post?), but it doesn’t make sense to grant immunity to websites whose sole purpose is to defame or invade privacy. It’s time to strip those websites of the ability to digitally gang rape women whose photos they post.

On revenge porn websites, the posting is just the beginning. Hunter Moore used to run a website, Is Anybody Up, where other men would write savage comments about the ugliness or sluttiness of the women in the photos. (“No sex with her unless she had a bag over her head” is one of the milder comments.) The more hits Moore’s site got, the more money he made through ads. “Hate can be monetized,” wrote Kelly Bourdet of Vice. Hunter Moore told the Village Voice how much he’d benefit if someone killed herself because of his posting her nude photo and comments about her: “So if someone fucking killed themselves? Do you know how much hate I’d get? All the Googling, all the redirects, all, like, the press…”

As I advocate in my book I Know Who You Are and I Saw What You Did: Social Networks and the Death of Privacy, we need to revamp Section 230 to allow people to sue the revenge porn websites for defamation and invasion of privacy and to grant people the right to have their photos removed. The rationale for protecting internet service providers (that they shouldn’t have a duty to police transmissions to see if people are defaming each other) should not apply to protect websites whose whole business model is to defame and harass. Women like Susan should have a right to have her nude photo—intended for an audience of one—to be removed from a website that is exposing her to the world.