Revenge Porn in Florida: Sexual Cyberharassment

Under Florida's sexual cyberharassment law, it can be a crime to post nonconsensual pornography -- sexually explicit images of another -- without consent.

Revenge porn – posting or distributing intimate photographs, images, or videos of another person on the Internet, without the person’s consent and in order to harass or upset that person-- is a crime, known as “sexual cyberharassment,” in Florida. (Fla. Stat. Ann. §784.049).

Revenge porn is a form of nonconsensual pornography (NCP), and most often involves a scorned or disgruntled ex-partner posting nude or revealing photos or videos of the other person, or photos or videos of the two engaged in sexual acts. These might be photos taken with permission, or photos that the victim shared with the poster while they were involved (perhaps suggestive selfies sent via text), but without permission to post publicly. Strangers also can engage in NCP, by hacking into others’ accounts or devices and posting images they find there.

Florida’s Sexual Cyberharassment Law

Under Florida’s sexual cyberharassment statute, it is a crime to publish a sexually explicit image of another person on the Internet that conveys the person’s identification information

  • without the person’s consent
  • without a legitimate purpose, and
  • with the intent to cause substantial emotional distress.

A first offense of sexual cyber harassment is a first degree misdemeanor and a second or subsequent offense is a third degree felony. A victim of sexual cyberharassment also may initiate a civil action under Florida’s cyber sexual harassment law, discussed further below.

The crime of sexual cyberharassment occurs in Florida if the act of posting the photo or video occurred in Florida or the harm occurred there. For example, if Joe posts a photo of Mary from a computer in Texas without her consent, but Mary lives in Florida and suffers serious emotional distress there, the crime has occurred in Florida.

What Is a “Sexually Explicit Image?”

A sexually explicit image is an image depicting nudity or a person engaged in sexual conduct. An image depicting nudity is one that shows enumerated parts or areas of the human body uncovered or covered only by see-through material. These body parts or areas include male or female genitals, pubic area, buttocks, or the female breast below the top of the nipple. An image of a covered penis in a turgid (aroused) state also is considered an image depicting nudity. (Fla. Stat. §847.001.)

An image of one or more persons engaged in sexual conduct includes acts of masturbation, actual or simulated sexual intercourse, and physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or the female breast.

What Is “Personal Identification Information?”

In order to be guilty of cyber sexual harassment, a person must post a sexually explicit image, without consent, that conveys identifying information of the person depicted. Identifying information is something that allows the viewer to identify the person depicted, such as the person’s name, phone number, physical or email address, date of birth, Social Security number, or driver’s license number, as well as various other numbers or information. In other words, to be guilty of this crime, Joe must have posted the image of Mary with her full name or other identifying information (such as her Facebook or Twitter name or her home or email address), rather than as an anonymous, unidentified person.

With Intent and Without a Legitimate Purpose

The requirement in Florida’s sexual cyberharassment statute that the person posting a photo or video intend to cause substantial emotional distress means the evidence must show the person did so to upset the other person or make the victim uncomfortable or ashamed. The most likely defense to this intent requirement probably would be an argument that the post was done for a legitimate purpose and not to harass or upset the other person. For instance, a journalist who does not know the person depicted might post a sexually explicit photo as part of an article and argue that the writer posted the photo solely for journalistic purposes. Another example of a legitimate purpose might be photos or videos posted by medical professionals as part of their scientific research.

How do prosecutors prove intent? If Joe accompanies the post of a nude photo of Mary with angry statements about her or about their break-up, the statements probably will be sufficient to prove he intended to cause her emotional distress. He will have difficulty establishing that he did not have that intent. If he posts the photo on a web site created for the known purpose of revenge porn – posting photos of ex-partners – the intent could be inferred solely from the act of posting, and angry or insulting statements might not be necessary to prove intent.

How is Sexual Cyberharassment Punished in Florida?

A first offense of sexual cyberharassment is a first degree misdemeanor in Florida. (Fla. Stat. Ann. §784.049.) A person convicted of a first degree misdemeanor can be imprisoned for up to one year and required to pay a fine of up to $1000, as well as a court costs. (Fla. Stat. Ann. §§775.082(4)(a), 775.083(1)(d)).

A second or subsequent offense of sexual cyberharassment is a third degree felony in Florida. (Fla. Stat. Ann. §784.049). A person convicted of a third degree felony can be imprisoned for up to five years and required to pay a fine of up to $5000, as well as court costs. (Fla Stat. Ann. §§775.082(3)(e), 775.083(1)(d)).

Civil Action and Other Ways to Address Sexual Cyberharassment

Florida’s sexual cyberharassment statute provides that a person who is a victim of this crime may file a civil lawsuit against the offender, seeking to prevent the crime or to provide a remedy after the crime has been committed, or both, including:

  • injunctive relief (explained more below)
  • $5,000 for damages or actual damages, whichever is greater, and
  • reasonable attorney fees and court costs.

Injunctive relief is a judge’s order to a person to do or to stop doing something. An injunctive order could direct Joe to stop posting photos or remove posted photos of Mary. If Joe has posted the photos and Mary can prove her damages, she can ask that Joe be ordered to reimburse her for those expenses. For instance, Mary might ask for the cost of psychiatric treatment to address her distress; lost wages when she missed work because she was so distraught; and moving costs because she had to move after Joe published her home address and people harassed her there. If those costs total $10,000, the court can order that Joe pay her $10,000.

A victim of sexual cyberharassment posted on social media can report the NCP to the social media companies in question. The Cyber Civil Rights Initiative, a non-profit devoted to helping victims of NCP, has published an online guide to the steps victims can take to address NCP.

Exceptions to Florida’s Sexual Cyberharassment Law

Florida’s sexual cyberharassment statute does not apply to interactive computer services and law enforcement officers who post images publicly as part of their job duties. Interactive computer services are internet services like Facebook and Twitter, which allow users to upload and share content with other users. If Joe posts the nude photo of Mary on Facebook or Twitter or a revenge porn website that simply allows individuals to create an account and post content, the owners of those services will not be responsible for his criminal act.

Federal law also provides immunity (protection from prosecution) to interactive computer services in Section 230 of the Communications Decency Act, but neither the federal law nor Florida’s statute provide immunity to information content providers, typically the owners of websites or other services that create, develop, and publish online content. An interactive computer service can be deemed to be an information content provider if the service goes beyond being a passive conduit (a site or service where people post their own content) and engages in publishing and creating content. If a revenge porn website urges or requires third parties (posters), to not just post photos or videos, but also to submit information identifying the person in a photo or video, the owner of the website may be deemed a co-developer and, therefore, an information content provider.

Consult an Attorney

Nonconsensual pornography is a serious crime. If you have been charged with this crime, contact a criminal defense attorney in your state for information about your rights, possible defenses, and representation. If you have been a victim of NCP, you can contact a civil attorney or a criminal defense attorney to learn about your rights and options.

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