Revenge Porn Laws in California

California has specifically outlawed "revenge porn." In California, it is a crime to post or otherwise electronically distribute a digital image of another person in order to harass, cause fear in, or lead to injury of that person. Revenge porn, sometimes called "cyber exploitation," is a form of nonconsensual pornography (NCP). Although disgruntled exes are frequently the perpetrators of revenge porn, strangers also commit NCP by hacking into others' accounts or devices and then posting images they find.

As of 2021, California is one of 42 states (and the District of Columbia) that explicitly outlaw nonconsensual pornography. But even states that do not specifically address NCP often have existing criminal laws that cover NCP. For more information about nonconsensual pornography in general, see Revenge Porn: Laws and Penalties.

California Nonconsensual Pornography Law

Anyone who distributes an image of another person with the intent to cause fear in the other person commits a crime in California.

California has also outlawed the unauthorized access of electronic devices or data by one without permission to have such access. And, anyone who has been a victim of nonconsensual distribution of his or her image may sue the perpetrator in civil court.

Harassment By Means of Electronic Communication

Anyone who uses an "electronic communication device" (such as a cell phone or computer, see below) can be charged with a misdemeanor in the following circumstances:

• Distribute or send. The law makes it illegal to distribute, post, email, or otherwise disclose any personal identifying information, including a digital image, of another person without consent; or to send a harassing message.
• Likely effect, on whom. The law applies when the distribution or sending would likely incite or produce harassment by a third party.
• Intent of the distributor or sender. The prosecution will have to prove that the defendant intended to place another person in reasonable fear for his or her own safety (or that of an immediate family member).

(Cal. Penal Code § 653.2.)

Any individual who engages in harassment by electronic communications may also be charged with misdemeanor stalking under California law. (Cal. Penal Code § 646.9.) For more information about stalking, see Harassment and Cyberbullying as Crimes.

The California statute defines the terms used in the statute, as set forth below.

What Is an "Electronic Communication Device?"

As used in the California statute, "electronic communication device" "includes, but is not limited to," telephones, cell phones, computers, Internet Web pages or sites, hybrid cellular/Internet/wireless devices, personal digital assistants (PDAs), video recorders, fax machines, or pagers. (Cal. Penal Code § 653.2.)

What Is "Harassment?"

As used in the California statute, "harassment" means a knowing and willful course of conduct directed at a specific person that a reasonable person would consider seriously alarming, annoying, tormenting, or terrorizing the person and that serves no legitimate purpose. (Cal. Penal Code § 653.2.)

Distribution of a Private Image

Prosecutors in California can charge someone with a misdemeanor offense if they think they can prove, beyond a reasonable doubt, the following:

• Intentional distribution. The defendant intentionally distributed an image of the intimate body parts of another identifiable person or an image of another identifiable person engaged in a sexual act.
• Intention of the parties. The persons involved agreed or understood that the image was to remain private.
• Likely consequence. The individual distributing knew or should have known that distributing the image would cause serious emotional distress, and
• Actual harm. The person depicted suffered serious emotional distress.

(Cal. Penal Code § 647(j)(4)(A).)

The California statute defines the terms used in the statute, as set forth below.

What Is a "Sexual Act?"

For purposes of the California unlawful distribution statute, the term "sexual act" includes "sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation by the person depicted or in which the person depicted participates." (Cal. Penal Code § 647(j)(4)(A).)

What Is an "Intentional Distribution?"

For purposes of the California unlawful distribution statute, a person "intentionally distributes" an image as described in the statute when he or she personally distributes the image, or arranges, specifically requests, or intentionally causes another person to distribute that image. (Cal. Penal Code § 647(j)(4)(B).)

A California court has defined "intentionally distributing" to include posting a photograph of another person on the public social network page of the victim's employer. (People v. Iniguez, 247 Cal.App.4th Supp. 1 (2016).)

What Is an "Intimate Body Part?"

For purposes of the California unlawful distribution statute, the term "intimate body part" means any portion of the genitals, the anus, and in the case of a female, also includes any portion of the breasts below the top of the areola, that is either uncovered or clearly visible through clothing." (Cal. Penal Code § 647(j)(4)(C).)

Unauthorized Use of Electronic Device

Anyone who knowingly and without permission accesses a computer, computer system, or computer network, or takes or copies any data (including images) from the computer, system, or network may be charged with a felony in California. (Cal. Penal Code § 502.)

Defenses to Revenge Porn Charges

A person charged with the California crimes discussed above may raise one or more of the following defenses.

Consent

If the person depicted in an image that another individual distributes or posts has consented to the distribution, the individual distributing the image may raise that consent as a defense to a charge of harassment or unlawful distribution of a private image. However, merely consenting to the recording of the image does not amount to consenting to the distribution of the image. And, if the person disclosing an image also sends a harassing message or otherwise acts to incite harassment of the victim by others, consent is no defense.

Authority to Use Device

An individual charged with unauthorized use of an electronic device who had permission to use the device, system, or network in question and any data contained on it may raise this permission as a defense to a charge of unauthorized use of an electronic device. But, if the individual posted or otherwise disclosed data (including images) on the device, system, or network, he or she must have also had permission of the person depicted or whose data was disclosed to make that disclosure.

No Reasonable Expectation of Privacy

The defense that the person viewed or recorded did not have a reasonable expectation of privacy is also available to an individual charged with distribution of a private image. However, a victim's lack of a reasonable expectation of privacy is not a defense to harassment by means of an electronic device.

How Is Nonconsensual Pornography Punished in California?

Nonconsensual distribution of images of another, harassment by electronic means, and unauthorized use of electronic devices are all serious crimes in California and anyone convicted of these crimes may face jail or prison time and fines.

Punishment for Harassment by Means of Electronic Device

Harassment of another person by means of an electronic device is a misdemeanor in California. (Cal. Penal Code § 653.2.) Anyone convicted of this misdemeanor in California faces up to 364 days in jail, a fine of up to $1,000, or both. (Cal. Penal Code § 653.2.)

Punishment for Unlawful Distribution of Private Image

Unlawful distribution of a private image is a misdemeanor in California. (Cal. Penal Code § 647(j)(4)(A).) Anyone convicted of this misdemeanor in California faces up to six months in jail (Cal. Penal Code § 19), a fine of up to $1,000 (Cal. Penal Code § 19), or both.

If the victim of the unlawful distribution was a minor at the time of the offense, the violation is punishable by imprisonment in a county jail not exceeding 364 days, by a fine not exceeding $2,000, or both. (Cal. Penal Code § 647(l)(2).)

Punishment for Unauthorized Use of Electronic Device

The maximum charge a person who has engaged in unauthorized use of an electronic device to distribute a digital image of another person or to send a harassing message faces is a felony charge in California. (Cal. Penal Code § 502.) A person convicted of this felony in California faces 16 months, or two to three years in prison, a fine of up to $10,000, or both. (Cal. Penal Code § 502.)

Copyright Protections

In addition to reporting a potential crime as described above, a victim of nonconsensual pornography may use copyright laws to demand the removal of the offending images from whatever site or publication has displayed them. For more information, see Using Copyright Law to Combat Revenge Porn.

Other Ways to Address NCP

If you have been a victim of nonconsensual pornography posted on social media, you may want to 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 steps victims can take to address NCP.

And, in California, a victim of nonconsensual pornography can sue the person who distributed the private image without the victim's consent. (Cal. Civ. Code § 1808.85.) A victim who wins such a lawsuit can obtain a court order that the image be removed, monetary damages, and an award of his or her attorney's fees.

Consult With a Lawyer

Nonconsensual pornography is a serious crime. If you have been charged with the crime, have been the victim of it, or have any questions about NCP or any other sexual crime, contact a lawyer experienced in criminal defense law in your state.