Revenge Porn and Internet Privacy

“Revenge porn” is a term often used for the nonconsensual distribution of intimate images (also called NDII or Image-Based Sexual Abuse Material. The name itself is a misnomer, however. Use of the word “revenge” implies that the victim did something to warrant a retaliation. Victims never deserve it. Plus, revenge may not have played a role at all. There are many cases in which the offender distributes the images to harass, scare, shame, boast, out of boredom, for money, the thrill of the hack, for the “lulz” or no apparent reason at all.

There is a lot victims can do on their own if somebody posted intimate or naked photos of them.

1. Document everything. Victims should be sure to take screenshots of all links and pages that are posted. This could be important evidence later on.

2. Remove from search engine results. Google and Bing have policies that enable victims to request removal of any search engine results that lead to revenge porn when one’s name is typed in.  You must submit the URLs on a form. We have instructions here. To help you search for sites, we recommend the following: type your name into a search engine followed by the words “whore, sex, hooker, ex, slut, bitch, naked.” Search images and videos.

3. Remove from social media. Instructions here provide links and information about reporting it.

4. Report to law enforcement. To determine if your state has a law, check out our map here. If your state does have a law, report it to the police. Chances are it is a new law, so print out the law and take it with you when you report the crime. Be sure to take screenshots and to have them organized beforehand. Also make sure you report other crimes you experienced, such as physical or financial abuse, hacking, impersonation, harassment, stalking, extortion, or coercion. If you are underage in the pictures or they were taken without your consent or knowledge, those are both additional crimes. For people who live in states without revenge porn laws, if any of these other crimes in the list above transpired, report it and emphasize these crimes.  In states without revenge porn laws, don’t emphasize that it is revenge porn, because they unfortunately may stop listening.

You must be prepared to explain who you think the offender is and why you think that. (Was he the only person you sent the picture to? Did he threaten you before he did it? Did you recently break up? Did he do other harassing and stalkerish things?) On TV it seems as though every crime results in an immediate arrest, but the truth is, you need to advocate for yourself and make a compelling argument that a crime transpired. Then you need to follow up.  If you get nowhere reporting it at the precinct, reach out to the district attorney. Also, be aware, that you cannot get a criminal order of protection until AFTER an arrest is made. Sometimes it can take months for an investigation to be complete, especially in under-resourced communities.

5. Send DMCA notices to websites. Some websites will take revenge porn down voluntarily, but others require a formal “takedown letter.”  The Digital Millennium Copyright Act (DMCA) is a federal law that gives Internet service providers safe harbor from liability for copyright-infringing material their users post. That means you can’t sue a website for posting images you own. However, the website loses that safe harbor if you send it a DMCA notice announcing to them that you own the copyright and they ignore it. DMCA notices must adhere to a very strict statutory language set forth by 17 U.S. Code 512(c)(3). No exceptions. All websites hosting third-party material must post an address that indicates where DMCA notices should be sent. It’s usually at the bottom of the page. DMCA Defenders is an excellent company experienced in sending DMCA notices as the agents of victims, and gets swift results. [Copyright 101 tutorial: If you took the picture, you own the copyright. Ownership of the copyright does not require that you register it anywhere. If you took the pic, you automatically own it. If it’s a selfie you took, you own it. If he took it, he owns it. Even if you are in it, he owns the copyright. Generally, whoever clicked the button owns the picture.] The only reason to register the copyright is if you are planning on suing somebody (e.g., a website for ignoring the DMCA notice) for infringing on the copyright. DMCA Defender is an excellent company that has expertise in sending DMCA notices as the agent of victims of revenge porn, and gets swift results.

6.  Get an order of protection in family court.  If you were in an intimate relationship with the offender, here in New York, family court has jurisdiction.  Within a day you can obtain a temporary order of protection that can be served on the offender requiring that he cease all contact.  In New York, the temporary order of protection does not include Internet harassment or the distribution of online pornography on the boilerplate form.  You must request that the judge to include special additional language.

For more information about the ins and outs of family court orders of protection, click here. We frequently represent victims in these family offense proceedings and highly recommend an attorney be involved in the case at the earliest stage possible to ensure that your temporary order of protection contains all the language you need.

7.  Sue in civil court.  If there is no criminal order of protection and family court does not have jurisdiction, you can sue for an injunction to stop the harassment.  You can also sue for the intentional infliction of emotional distress. Depending on your state and circumstances, you may also have other claims such as privacy invasion torts, prima facie torts, defamation, copyright infringement, and more.  Once a case is filed in civil court, we can subpoena the different websites to obtain user information and IP information about the offender.  Civil court is also how we can de-anonymize anonymous offenders.  Several states have specific civil statutes for victims of revenge porn. Civil court can be expensive, time consuming, drawn out, and public.  If you are suing for money damages, it helps if the defendant has some.  Otherwise, you may win a six figure judgment, but if he lives in his mom’s basement with five dollars to his name, your recovery will buy you nothing more than a pack of gum and a Diet Coke. That said, litigation can also be very vindicating.  Civil court is the only legal way that somebody can try to get even with somebody who has wronged them. When we represent people in civil court, we take great effort to protect their privacy.  Whenever we can, we make motions for our clients to proceed under pseudonyms and for the file to be sealed so that the media does not amplify the privacy invasion.

8.  In the meantime, shore up your privacy and security settings.  If you are being attacked online by somebody, please immediately restrict your Facebook settings, require permission for anybody to post on your wall or tag you in a photo, and make your friends list private.  Enable two-factor authentication on all accounts, devices, cloud storage systems, and modems, create unique complex passphrases and answer security questions in unexpected ways (e.g., “Q:  What’s your mother’s maiden name?  A:  Baby Jessica fell in a well”).  Lock your doors.  Stay alert.  Stay safe.

A few more thoughts:

Nonconsensual pornography is not a new phenomenon, but the Internet has brought it to the masses with a cottage industry of websites dedicated to displaying naked pictures of people without consent, and a surge in hobbyists collecting nudes for sport, hunting and hacking for them, and displaying them like trophy kills.  Dedicated revenge porn sites and other forums invite users to upload naked images of their exes for millions of people to view.  As many as 3,000 websites feature revenge porn.  Indeed there is a market of depraved individuals who seek out revenge porn and get some sort of sexual gratification out of knowing the women were made into porn stars without their consent. Visitors to these sites are frequently not content to merely view the material, but often also viciously harass the subjects depicted, and make crude commentary about victims’ bodies, theorizing about their promiscuity and sexual health. To make the victims’ identity unmistakable websites often post personal information about the victims (e.g. full name, age, address, employer, e-mail address, social media screenshots, social security number, school, etc.) alongside the images.  Consumers frequently interpret this information as an invitation to engage in unsolicited contact with victims. They encourage one another to unearth and publish even more intimate images and personal details about the victims, prying into their personal lives and sometimes hacking into e-mail accounts in this quest.  In addition to publishing revenge porn on websites for strangers to consume, some offenders post pictures and videos on mainstream porn websites or alongside sex ads impersonating the victim.  Others transmit the material directly to those close to the victims through email or text or direct message.  Sometimes the offender copies the victim’s list of Facebook friends and sends the images or links to the images to all of those people. Or they post it publicly on social media platforms linked to the victims, such as her Facebook or Instagram page, or on Twitter.  Still others go to even further trouble and create entire websites devoted to their victim and then send her family members the link.

We still live in a society where victims are judged for taking nude pictures.  However, there is nothing wrong or abnormal with sharing naked pictures within the context of a trusting relationship. A study on Upworthy showed that 50% of American adults sext and 70% admitted to having received a nude photo. If you are a victim of revenge porn, chances are you already feel awful enough; there is nothing right about somebody judging you on top of it.  Anybody who does should be scolded and reminded that just as we don’t judge victims of other non-consensual crimes for, say, drinking too much, flirting with the wrong guy, staying out too late, or wearing too skimpy an outfit, we can’t judge victims of revenge porn for taking the image.  Or, as John Oliver said, it’s not like we tell people who have been robbed, “If you don’t want to get burgled, don’t live in a house.”

A significant percentage of people who distribute nude images without consent first threaten to do so. Surprisingly, the threat to distribute can be criminal — even in states that don’t have dedicated revenge porn criminal laws. Criminal coercion laws are triggered if somebody demands that you do something you have the legal right to abstain from or demands that you abstain from something you have the legal right to do. Coercion laws require that the offender assert control by instilling fear in the victims, and by stating that if the demand is not complied with, the offender will cause injury, property damage, criminal conduct, accuse you or a third party of a crime, expose a secret that subjects the victim to hatred/contempt/ridicule, cause harm to a victim’s health, safety, business, finances, reputation, or personal relationships, etc.

In the context of revenge porn, offenders often threaten to release the images if the victim ends the relationship. Or the offender may threaten to release the images if the victim does not provide different or more graphic ones or agree to other sexual favors.

In addition to the criminal laws, we can use civil law to address the threat to distribute images. If the victim was in an intimate relationship with the offender, we can seek a temporary order of protection in family court or sue for an injunction in civil court restraining the offender from distributing the image. We can also send a cease and desist letter to the offender informing him of the criminal and civil repercussions of his actions.

It’s illegal to film sex without the knowledge or consent of participants. It is also illegal to photograph individuals in intimate settings in a state of undress without their knowledge or consent. There have been some high profile cases that involve hidden cameras or stealth recording devices that were installed unbeknownst to victims. Sometimes these images wind up on the Internet and the images themselves are evidence of the crime. In addition to pursuing criminal proceedings, victims can sue in civil court for the damages they suffered as a result of the privacy invasion.

Defamation is a blanket term for a statement that injures someone’s reputation. Written defamation is called “libel.” Spoken defamation is called “slander.” In almost all states, defamation is not a crime. However, a defamed person can sue the defamer. The public perception of what constitutes “defamation” is quite different from the legal definition. This causes disappointment for many would-be litigants. In a defamation lawsuit, the defamed person must prove that there’s been a statement that is all of the following: 1) published, 2) false, 3) injurious, and 4) unprivileged.

Importantly, the statement must be false. Even if the statement is incredibly mean or nasty, if it looks like an opinion, it is not defamation. The plaintiff must prove that it is objectively false. Truth is always a defense in a defamation lawsuit.

A great deal of defamation happens online, especially with anonymous lies about a person’s sexual health, infidelity, criminal record. Online service providers generally can’t be held liable for content that user’s post. They can, however, be asked to remove defamatory content and can be subpoenaed to provide user information (e.g. IP address, etc) about the person who posted the information.

Remember: if it’s true, it’s not defamation, though it may trigger different invasion of privacy claims, depending on the state where the case will be brought. An attorney can figure out the best way of addressing your situation to get you the best possible outcome.

The Internet has made it very easy to impersonate another person. Sometimes offenders create social media accounts in the victim’s name and then interact in humiliating ways with the victim’s friends and family, such as by sending naked photos or propositioning people for sex. Other times, offenders impersonate the victim and create ads on Craigslist or Backpage soliciting sex and providing personal information encouraging strangers to come to the victim’s home or workplace expecting sex. Still others purchase websites with a URL containing the victim’s name and use that to post embarrassing images and statements about the victim. Online impersonation can create very real offline risks. It is important to report this criminal conduct. Additionally, victims should proactively report impersonation on the online platform where it occurs.

Civil remedies are also available in impersonation situations. We may be able to seek restraining orders in family court. If the impersonation is happening anonymously, and there is no criminal case, it likely will be necessary to initiate a civil case to subpoena the online service provider in efforts to de-anonymize the offender.

Sextortion is a fraught term because really we’re dealing with extortion and/or coercion, plain and simple. At this point, though, even the FBI uses the term. It usually involves sexual exploitation in which abuse of power is used to control the victim, such as in sex-trafficking situations. It is also used when somebody is coerced into doing something and threatened with the release of sexual images.

This is a crime of the digital age. It’s complicated because often the perpetrator is anonymous or impersonating another person and may live on the other side of the world. They also may be masking their IP address or using TOR. When the perpetrator is unknown, it’s harder to get the attention of law enforcement.

Common scenarios involve victims who meet a stranger in a chatroom or on social media. Over a period of time the stranger earns the victim’s trust and gets the victim to send nude images or strip via webcams. After nude images are sent, the stranger then reveals himself to be of malicious intent and threatens to distribute the images to the victim’s friends, families, and employers if the victim does not provide more, pay money, or perform sexual favors. Underage victims are often the prey of sextortion schemes. Sometimes the offender is known to the victim, such as in situations when a pimp threatens to distribute naked images when a sex trafficking victim tries to leave the business.

Victims are also limited in the civil relief they can seek because it could be very time consuming and expensive to sue somebody internationally or enforce a restraining order.