Revenge Porn: Laws & Penalties

Revenge porn (also called nonconsensual porn) involves online posting of explicit photos of people without permission, often by exes. Many states have criminalized revenge porn, and some allow civil remedies, as well.

Revenge porn, also known as nonconsensual pornography, is the distribution of one or more sexually explicit photos of someone else, without the subject’s permission. The photo could be one that the victim took him or herself and shared with the eventual poster, a photo taken by someone else (often an ex-partner or ex-spouse), or an image taken from the victim’s computer or device by a hacker. The victims are overwhelmingly female, and the damage done to their reputations and well-being can be enormous.

States are increasingly passing targeted legislation that criminalizes such conduct and, as of 2020, nearly all have done so (46 states, plus D.C.). This article looks at the laws of a few states that target revenge porn, explains the related criminal statutes that might apply, and examines civil remedies that are sometimes available.

Revenge Porn Websites

Revenge porn sites feature nude and sexual photos of people (mostly women), often posted by a former partner. A number of websites host these images. Many sites include identifying details, such as the person’s full name, employer, and hometown, as well as links to the person’s Facebook or other personal webpages, plus nasty comments. Although some revenge porn sites have been shut down in response to lawsuits and prosecutions, new sites pop up all the time. Images can also be easily picked up by other websites, and content that is widely distributed on the Internet is difficult to remove. So, even if a person succeeds in getting images removed from one site, it might be difficult or impossible to get them completely off the Internet.

Websites Use the Communications Decency Act as a Shield

The first line of defense mounted by a revenge porn site involves Section 230 of the Communications Decency Act, a federal law that gives immunity (protection from prosecution) to websites for content posted by third parties. The idea here is that when the site is a mere conduit, it won’t be held responsible for what users post. But that immunity goes away if the website or webmaster goes beyond being a passive conduit and engages in the publication of the content, as an editor or co-developer. For example, a site whose design urges third parties (posters) to submit information that ultimately forms the basis for the victim’s legal claim may be deemed a co-developer and fair game for a lawsuit.

A notorious revenge porn website, UGotPosted.com, lost its immunity when it was sued in California. The site’s operator ran a companion site, ChangeMyReputation.com, which offered to take down the victims’ photos for $400. It was a tidy operation: Elicit and post the offending material (and earn money through advertising), and include a link for removing it (again, at a price). The appellate court found that, due to the developer’s involvement in curating the photos and information on the site, he was a content provider and not entitled to immunity. (People v. Bollaert, 248 Cal. App. 4th 699 (2016).)

State and Federal Criminal Legislation

Many states have criminalized nonconsensual or revenge porn. For example, New Jersey’s invasion of privacy law, enacted in 2004 (before revenge porn came to national attention), prohibits selling, providing, publishing, distributing, or otherwise disseminating nude or sexual photos of another person without that person’s permission (the penalty ranges from 18 months to five years' prison time and a fine up to $30,000). Wisconsin has a similar statute (punishable as a class A misdemeanor, unless the victim is a minor, then it's a felony), as does Idaho (maximum five years' imprisonment, a fine up to $50,000, or both). (N.J. Stat. Ann. § 2C:14-9 (2020); Wis. Stat. Ann. § 942.09 (2020); Idaho Code § 18-6609 (2020).)

Although no specific federal law targets revenge porn, a bill introduced by Representative Jackie Speier (D-Calif) in 2016 (and reintroduced in 2019) attempts to do just that. It would make it illegal to "...knowingly distribute a private, visual depiction of a person’s intimate parts or of a person engaging in sexually explicit conduct, with reckless disregard for the person’s lack of consent to the distribution, and for other purposes." (Discussion Draft, Intimate Privacy Protection Act.)

First Amendment implications. Nonconsensual porn statutes have some drawbacks. For instance, they could apply to someone who disseminated photos of legitimate public interest, such as the journalists who print photos showing evidence of a sex crime. And it’s arguable that they run afoul of free speech guaranteed by the First Amendment: While certain kinds of speech (including defamation, child pornography, fraud, and obscenity) do not deserve First Amendment protection, the posting of sexually explicit photos without permission, without more, is still protected.

Child Pornography

While sharing naked photos of adults without their permission is not necessarily illegal, sharing any nude or sexual images of children under the age of 18 is considered child pornography. People who share such images can expect to be prosecuted, sentenced to lengthy prison terms, and ordered to register as sex offenders. For more information on sharing child pornography, see Teen Sexting.

Civil Remedies

In addition to criminal penalties, about a dozen states provide civil remedies for victims. State laws vary, but a victim might be able to recover monetary damages (for reputational or emotional harm), statutory damages (a set amount for each violation), damages equal to the defendant's financial gain in posting the image, punitive damages (to penalize the defendant), and attorneys' fees and costs. In addition, the law may authorize injunctive relief—meaning the court can order the defendant to take down the website, destroy images, and refrain from causing future harm. States with civil remedies include Colorado, Minnesota, Nebraska, and South Dakota. (Colo. Rev. Stat. §§ 13-21-1401 et seq.; Minn. Stat. § 604.31; Neb. Rev. Stat. §§ 25-501 et seq.; S.D. Codified Laws §§ 21-67-1 et seq. (2020).)

Another approach to combating revenge porn lies in filing a copyright infringement suit. This approach does not involve issues raised by the Communications Decency Act.

Getting Help

Victims of revenge porn report being harassed and stalked by people who have seen their images online, and some women have lost their jobs or experienced depression. However, people have succeeded in getting their private images removed from websites (although this part can be challenging, given how easy it is for photos to appear on other sites). Information on how to do this and other steps to take if you are a victim of revenge porn can be found online at www.cybercivilrights.org.

Obtaining Legal Assistance

If you are charged with a crime tied to revenge porn, you should talk a criminal defense attorney in your state. An attorney can tell you how your case is likely to be treated and what you can do to protect your rights and obtain the best possible outcome.

If you are a victim of revenge porn, you may also wish to talk to a civil attorney who can help you get the photos removed from the Internet and possibly take other legal action. Also, consider contacting local law enforcement. California's Attorney General, for example, asks that victims of revenge porn websites file a complaint on its website.

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