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California Seeks To Criminalize “Revenge Porn”

It seems like every couple of months the Internet lights up with news of the latest “leaked” celebrity sex tapes, or with the publications of previously “private” sexually explicit photos sent from one celeb to another, only to be posted when the relationship sours.

Called “revenge porn,” an increasing number of disgruntled exes (most often boyfriends and husbands) are taking to the Internet to share explicit photos and videotapes made during consensual relationships.   In fact, several websites have been launched exclusively dedicated to “revenge porn.” These sites allow exes to upload explicit photos or video tapes along with personally identifying information such as the woman’s name, email address or other contact information, even their Facebook profiles.  Many times these images go viral.

Victims of revenge porn often have no recourse.  Section 230 of the federal Communications Decency Act (CDA) protects many of these sites from liability.   Pursuant to the CDA, websites and Internet service providers cannot be treated as publishers when that information is “provided by another information content provider.”  In other words, the website will not be held accountable for content posted by an ex.  Further, only one state – New Jersey – has criminalized disclosing explicit photos of another adult without their consent.

California’s Proposed Law

In order to address this problem California is seeking to pass the country’s first law to expressly criminalize “revenge porn.”

Senate Bill 255 makes it a crime to photograph or record a sexual image with consent and then “subsequently distribute the image taken, with the intent to cause serious emotional distress.”

Proposed penalties for breaking the law would include six months in jail for a first offense, and up to a year for repeat violations.

First Amendment Considerations

Despite general acceptance that the practice of “revenge porn” is reprehensible, drafting legislation that doesn’t impermissibly violate our First Amendment rights may be challenging.

Jeff Hermes, director of the Digital Media Law Project at the Berkman Center for Internet & Society at Harvard University, notes a “balance needs to be struck properly… You need to be extraordinarily careful in criminalizing privacy law because of the risk you’re going to deter legitimate speech.”

However, supporters of the law argue that the language of the proposed law is narrow enough that it won’t infringe on our freedom of expression.  First, because “revenge porn” involves a purely private matter, First Amendment protections are not as strong.  Further, allowing others to view “sexual images” is not a legitimate public concern.  Finally,  “nonconsensual pornography” doesn’t have “First Amendment value as a historical matter.”

As explained in a CNN OpEd: “Criminalizing revenge porn is a crucial step in protecting victims from real and profound harms to their physical, emotional, and financial health and safety. It would deter damaging privacy invasions and send the powerful message that posting someone’s most private moments, most often in a breach of their trust and without their permission, is unacceptable.”

If passed, this law will likely become a model for other states to follow suit.