Are Laws Against "Revenge Porn" A Good Idea?

Protecting victims is important, but broad laws threaten everyone's free speech.

Those of us who value free speech as a paramount value that is essential to liberty tend to be skeptical of privacy laws. Privacy is often in tension with speech rights because protecting one person’s private information can mean preventing another from speaking the true things they know. In many cases, and especially when it comes to commercial speech online, the harm that privacy laws aim to mitigate is an amorphous feeling of “creepiness.”

When it comes to revenge porn, however, the harm is very real.

As Mitchell Matorin, an attorney who has represented involuntary porn victims, wrote recently in Talking Points Memo, free speech advocates can give short shrift to the plight of people who find their lives turned upside down when their most intimate photos are posted online along with their names, phone number, email address, and social media profiles. It’s not merely an inconvenience for the victims–mostly women–who took erotic photos (as adults are allowed to do) only to find themselves hacked or betrayed by an ex-lover.

Because photos are posted along with the victim’s name and contact details, they may soon find their way into her father’s email inbox. Potential employers or dates who search for her name online find the photos among the top results. Strangers approach her on the street to make lascivious remarks. Imagine if this happened to your sister or daughter.

Free speech absolutism can seem naive in the face of revenge porn’s very real consequences. As a result, anyone who dares question the wisdom of criminalizing speech is quickly accused of “blaming the victim.

“If you consider this ‘speech’ and you prize ‘free speech’ above all else, be honest and admit that your only concern is an abstract ideal and the victims are just collateral damage.” wrote Matorin. “Don’t pretend that they already have sufficient remedies.”

The sad fact, however, is that no reasonable remedy may ever be sufficient. Pointing out that reality is not blaming the victim.

Through civil lawsuits for invasion of privacy and infliction of emotional distress, among other torts, victims do indeed have recourse against those who posted their images online. These causes of action may not seem sufficient, however, because it may be impossible to identify the person who posted the images, or the poster may be judgment proof. More importantly, even if a victim obtains a judgment against her tormentor, the photos will likely remain on the Internet, copied by countless others to dozens of sites.

This month California enacted a law making it a crime to post intimate photos of another with an intent to harass. Both campaigners for stricter privacy protections and free speech advocates criticized it as ineffectual. The former on the grounds that the law only applies if the poster was also the photographer, the latter arguing that it unnecessarily encroaches on the First Amendment without making victims any better off than they would be employing civil suits. As satisfying as revenge against the perpetrators of revenge porn may be, incarcerating the perpetrator is not going to erase the victim’s photos from the Internet.

So how does a victim go about having her photos removed from the Internet? The answer is that it’s almost impossible.

Section 230 of the Communications Decency Act grants immunity to websites for content posted by their users. If user generated content posted to a site does not violate copyright or a federal criminal laws, then the site is not liable as the speaker might be, nor does it have an obligation to take the content down. Believe it or not, this simple law is the font of our amazing modern Internet. Without it, it’s not likely we would have seen the explosion in content and technical innovation the last decade has brought.

Imagine if YouTube were responsible for the content of the videos that its users uploaded? Or if Reddit was responsible for user’s posts and photos? Or if Reason was responsible for the speech in the comments section of articles? It’s likely that without Section 230, these sites would either not exist, or would not take the risk of carrying user generated content, and we’d be much the poorer for it.

In Europe, where intermediary protection is not as strong, company executives have been found liable for the libelous or harassing content that users have posted. This may have something to do with the fact that almost all user generated content innovation–from Facebook to Tumblr to Vine–happens in the U.S.

Unfortunately, Section 230’s intermediary immunity also applies to sites that do nothing but solicit and host revenge porn. As a result, some argue for an exemption to deal with revenge porn. We have to ask ourselves, though, whether such an exemption could ever provide the sufficient remedy victims seek, and what we would be giving up by tinkering with Section 230.

The good news is that even without an exemption, revenge porn sites do not tend to fare well. Infamous sites like IsAnyoneUp, Texxxan, and PinkMeth were all driven out of business shortly after they launched under pressure from victims, media, the public, and vendors that refuse to service the sites. The bad news is that the photos they hosted might now be found elsewhere on the web, there’s no exemption that will eradicate them all, and it is not treating victims as “collateral damage” to face that fact.

To the extent Section 230 should be changed to deal with revenge porn, an appropriate model might be the law’s existing exemption for copyrighted content. Known as “notice and takedown,” it allows copyright holders to give notice to websites that a user has posted copyrighted content without authorization and the website must take it down immediately in order to retain its immunity. The site must also notify the poster and allow them to appeal the decision. Such a system would help balance victim’s interests with important free speech rights and the intermediary immunity that makes today’s Internet possible.

Controlling the spread of information once it’s released on the Internet is practically impossible. This doesn’t mean we shouldn’t try when the information is harming real people, but it does mean that we should factor in the potential futility of our efforts as we consider how much we want to alter our simple, and indeed sweeping, free speech and intermediary liability rules that have served us so well.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Snark Plissken||

    Are Laws Against "Revenge Porn" A Good Idea?

    Short answer: no fucking way.

  • Lord Humungus||

    at least while I'm watching them.

  • The Rt. Hon. Serious Man, Visc||

    The sad fact, however, is that no reasonable remedy may ever be sufficient. Pointing out that reality is not blaming the victim.

    Ho ho ho. Good luck getting anyone in Camp Feminist to see it that way.

  • sarcasmic||

    If you don't want compromising photos or videos to be used against you, don't take them in the first place!

    derp

  • Snark Plissken||

    Listen you heartless bastard, preventing women from owning phones with cameras until they are of an age to be responsible, say 30, is a much more humane solution.

  • AlexInCT||

    What do you mean 30? Don't send them at any age. Once you do its public content.

  • Scarecrow Repair||

    Right, cuz who wants to see pictures old women over 30?

  • RobSmalls||

    Are you asking because you have some? Because, maybe?

  • SugarFree||

    If the pictures or video are not their property, there are already laws and torts available; if the pictures or video is their property, they can do what they like with it.

    Unless you are prepared for the entire world, including your kindly grandfather, to see your jubblies, don't let people take nude pictures of you or send anyone nude pictures.

  • Fluffy||

    Because photos are posted along with the victim’s name and contact details, they may soon find their way into her father’s email inbox. Potential employers or dates who search for her name online find the photos among the top results. Strangers approach her on the street to make lascivious remarks. Imagine if this happened to your sister or daughter.

    In other words, the initial true speech by private individuals leads to additional true speech by private individuals.

    “If you consider this ‘speech’ and you prize ‘free speech’ above all else, be honest and admit that your only concern is an abstract ideal and the victims are just collateral damage.” wrote Matorin. “Don’t pretend that they already have sufficient remedies.”

    When the examples of harm you offer are themselves all examples of additional true speech by private individuals, I don't see where the actionable damage is.

    At least with libel laws you can claim that the speech being circulated is false, so the "victim" has suffered an actionable loss of reputation based on a falsehood. (I have my problems with that legal theory, too - but at least the speech in question has to be knowingly false.)

    Here you're arguing that it's an actionable loss of reputation if other people learn true facts about you on the basis of another's speech.

    Fuck off, slaver.

  • Bo Cara Esq.||

    Do you not think there an be harm in a violation of an expectation of privacy itself? I am thinking of several of the 'privacy' torts.

  • Fluffy||

    If you had nude pictures of yourself on your own computer and someone hacked in and stole them, I could be convinced your privacy had been violated.

    If you allow someone else to take a nude photo of you, or if you take one yourself and voluntarily send it to another person, your privacy claim lacks merit. A third party intercepting that photo might be violating the expected privacy of your communication, but not the target of that communication.

  • A Secret Band of Robbers||

    Good points. You might be able to convince me of a weak expectation of privacy if a reasonable person could assume the pictures were of a personal nature. There's no way that passes muster as an actual crime, though.

  • Bo Cara Esq.||

    -There's no way that passes muster as an actual crime, though.

    Agreed. I am talking about civil cases.

  • Bo Cara Esq.||

    That is a good point.

    The only hesitancy I have to simply agreeing involves a conversation I had here a few months ago about whether parties one does business with have a right to disseminate information they gained as part of the business you did with them. I think everyone agreed that if the party stipulated and notified their counterpart that they may disseminate such information, then, well, 'tough luck.' But there was disagreement about whether sans such notification a company should be able to deal with your information in a way that was not contemplated as part of the transaction, or in a way that would be contrary to a reasonable expectation of privacy. I can see an argument to be made that even absent an explicit agreement between us barring it my bank or doctor should not share certain information of mine with others.

    And I am not sure where these cases of revenge porn fall in that discussion. When a person sends a lover a naked picture, is it like the man who gives certain information to his banker or pharmacist?

  • FYTW||

    If you allow someone else to take a nude photo of you, or if you take one yourself and voluntarily send it to another person, your privacy claim lacks merit.

    I don't think that necessarily follows. There's an enormous difference between doing nude modeling for photos that you know and expect are going to be made public, and snapping a selfie that you expect to share only with the intended recipient.

    I disagree that sharing something in confidence with an intimate partner automatically defeats privacy claims.

  • Scarecrow Repair||

    Why is it any different for nude photos compared to any other private info?

    If I tell a friend how much I earn or how much my car cost or where my favorite fishing holes are or that I like to masturbate in pink bunny slippers for that squishy feel, are those any different from nude photos?

    People learn sooner or later that two people can keep a secret only if one of them is dead.

  • Bruce D||

    They're not. If one discloses information on even an implied condition it will not be further disclosed, then there is a violation of some sort. People don't disclose private info without the expectation or condition that it be kept private. If not, they would not have disclosed it.

  • A Secret Band of Robbers||

    How strong is that expectation of privacy? If the selfie was preceded by a text conversation that said, "imma send you a pic i took, but you have to promise not to show anyone, k? lol" "sure", you could argue for a strongish expectation of privacy, but you'd better be able to quantify the harm for a reasonable tort.

  • Bo Cara Esq.||

    I would think that when a person sends a lover a naked or risqué picture of themselves there is a general societal expectation that it was meant to be 'for their eyes only.' But I am somewhat old fashioned.

  • ||

    Yeah, the problem with that is there's all kinds of ways for people to intercept those pics. Hell, the NSA probably has every nude selfie ever sent by phone, webcam, or email.

  • blcartwright||

    true, but you you truly trust people? It's just opening one's self up to the possibility of bad consequences, so my advice would be don't go there, rather than falling back on the courts.

    but then shouldn't harassment or other malicious behavior be punishable even without a new specific law?

  • Fluffy||

    you'd better be able to quantify the harm for a reasonable tort.

    And you know, that's the bigger issue I have with it.

    Essentially to prove a harm, you would have to argue that there were benefits you were due to receive that failed to materialize because people became aware of true facts about you.

    Consider that for a moment.

    The claim would be of the form, "My employer was going to give me lots of money based on their presumption that I never posed nude. When they discovered I did in fact at one time pose nude, they didn't give me that money." This is a tort how? Isn't that a presumption that you're entitled to deceive?

    To me, for a tort to exist, you have to be denied something you had an existing or presumptive right to possess. You cannot have an existing or presumptive right to possess something based on a falsehood.

  • Bo Cara Esq.||

    -This is a tort how? Isn't that a presumption that you're entitled to deceive?

    How different is that harm from a claim that one did not get a job because of a libel or interference with contract? Of course you would have to prove to a jury that the action in dispute caused the harm, but that is true in all three.

  • Jquip||

    Well, if you posted nekkid pics of someone else, then it might be libel. If the model is uglier than who it is claimed to be a photo of. And false advertising, if you want to introduce that to the dating scene, if the model is prettier.

    But if truth is it's own defense, then there's no libel. "These is his teeny weener." And by gum it is, congrats on the extra publicity in the niche market of women that prefer tweezer-men.

    But this all boils down to veiled double reverse morality crimes in employment and other associations. That the publisher of true and 'legal' speech is on the dock since someone else committed the sin of calling pornography a sin.

    And on the publisher's side they're stating that there's a prior restraint on speech that is permissible if some random third party commits the sin of considering the contents, and judgement of the speech to be sinful.

    All rampant stupidity when the easiest of all possible answers is: Don't fuck on camera.

    And the easiest response to the obvious rebuttal is: Don't fuck people that you don't trust not to film you fucking them.

  • ||

    Ah! So, in other words, an honest person has no need of secrets.

    Kewl!

  • Hillary's Clitdong||

    Maybe if you have something embarassing, you shouldn't put into an easily copied digital format?

  • Fist of Etiquette||

    Without looking into the specifics, I support these laws. What if someone takes a picture of my penis without my knowledge and then spreads it around all over the internet on a website that makes money off the hits it gets? Isn't that wrong? Taking hits and therefore money away from the website I operate that charges a fee to see pictures of my penis?

  • Auric Demonocles||

    Isn't your competing service, where people pay you a fee to avoid receiving pictures of your penis, the more profitable one?

  • AlexInCT||

    ^^^^^THIS^^^^

  • Fist of Etiquette||

    Look, the bottom line is, do you want to see tastefully done photographs of my penis in various stages of arousal, or do you want to look at some polaroid scan with a bad lighting and a remote control next to it for scale reference or whatever, I don't really remember, at a time when I was drunk I think and not up to my usual physical standard? I didn't think so.

  • ||

    FoE is just worried about that time he was in the pool and then photos got taken. You know...SHRINKAGE.

  • ||

    Don't you ever knock?!

  • Fist of Etiquette||

    Actually, if you must know, it finds chlorine somewhat titillating and any photograph would reflect that.

  • Scarecrow Repair||

    *tastefully* .... he said *tastefully*

  • bassjoe||

    There are already civil and criminal laws that cover this type of behavior. The government specifically targeting "revenge porn" is the problem, not necessarily the actions themselves.

  • kinnath||

    Stupid is as stupid does.

  • ||

    Or if Reason was responsible for the speech in the comments section of articles?

    Ahem.

  • Raston Bot||

    I'm of the belief that I will be struck by lightning while simultaneously winning the lottery before I recognize anyone at any of those sites. Life is not fair.

  • Francisco d Anconia||

    Who looks at the faces anyway?

  • ||

    Imagine if this happened to your sister or daughter.

    Well, that would be their problem and responsibility, wouldn't it? Or are women without agency and need to be protected from themselves?

    The paternalism in this shit is cloyingly sickening. Your "sister or daughter" are people too, and they can take care of themselves, and they can deal with the repercussions of doing something stupid. In fact, they may even learn from it.

  • A Secret Band of Robbers||

    If this happened to your mom, it could harm her Yelp rating. Think this one through before you spout your glib opinoins, Epi.

  • ||

    Her Yelp rating is already in the toilet. Literally, because that's where her office is.

  • Brian D||

    Women having to learn stuff is sexist, Epi, just as women being prevented from learning stuff is.

  • ||

    What Epi said. They're adults.

    How about photos of someone taking bong hits? Should they be covered by these laws? After all, their parents, prospective employers, etc, etc might see them.

  • Bruce D||

    That depends upon the context. If one is photographed publicly taking bong hits, one can claim no property in such photos. If one sends a picture to someone or if the photo is in a context where there is reasonable expectation of privacy or if the context is such where the photo is taken on the condition, implied or explicit, that it is for private use, then it could be covered by copyright laws.

  • ||

    If it was my daughter I'd be tracking the fucker down and making sure he suffered.

    Of course my daughter is one so that's probably not who they were talking about.

  • bassjoe||

    You just keep on thinking that...

  • ||

    "Well, that would be their problem and responsibility, wouldn't it? Or are women without agency and need to be protected from themselves?"

    You're right, but the paternalists are still saddled with the "women are property" imprint.

  • ||

    I guess I shouldn't have sent Jesse all those dick pics.

  • Brian D||

    Or if Reason was responsible for the speech in the comments section of articles?

    Hey, the comments here are a repository of intellectual fucking purity!

  • ||

    A veritable cornucopia of philosophical profundities an' shit.

  • A Secret Band of Robbers||

    Has anyone considered the possibility that this could be disproportionately harming overweight feminists? How can we insure that their nude selfies get equal distribution?

  • sarcasmic||

    Give them to John.

  • Brian D||

    wider angle lenses?

  • Francisco d Anconia||

    As satisfying as revenge against the perpetrators of revenge porn may be, incarcerating the perpetrator is not going to erase the victim’s photos from the Internet.

    Jerry, you mention this point several times. While I haven't yet formed an opinion on the subject, this particular argument is faulty.

    If someone murders my wife incarcerating the perpetrator isn't going to bring my wife back either. It's NOT a reason to let her murderer walk free.

  • Hillary's Clitdong||

    SugarFree now has a paying job. Enjoy his new work of e-book erotica King of Bitcoin, available on Kindle. Quick sample: "Bitcoins? Buttcoins, more like!"

  • Bruce D||

    It's rip off. Don't waste your time. Shove it up your ass, spammer.

  • Jon Lester||

    These same people calling for laws against "revenge porn" probably expect abortion to remain legal, right?

  • Bo Cara Esq.||

    If they do it is of course because they do not see abortion as harming any person. Sheesh.

  • bassjoe||

    The First Amendment is rather absolute. This is clearly regulation of speech the government disapproves of.

    That said, there are ALREADY options available to the victims here, civil and criminal. For those whose pictures were private and were "hacked" into by exes who accessed the databases illegally or when the actions arise to criminal harassment, there are criminal remedies already available.

    Civilly, relief is available for a wide range of harms, allowing for injunctive relief against offending actor(s) to damages. Damages could include those resulting from inability to find or losing a job, defamation, etc.

  • juliajuli2778||

    my classmate's half-sister makes $73 every hour on the computer. She has been without a job for six months but last month her pay check was $20027 just working on the computer for a few hours. Check This Out

    ●►●►▶●►●►▶ http://www.works23.com

  • ||

    Is your classmate's half-sister sending out selfies? Is she intending to sue later on for unauthorized distribution of copyrighted images?

  • Bruce D||

    It's a rip off. Shove it up your ass, spammer.

  • Edwin||

    Ohhhhhhhh...
    When I heard about the Canadian "revenge porn" law passing, I thought they were talking about stuff like what was portrayed in South Park, where the adults were watching real-life-story murder mystery shows as porn, or playing video games and kiling each other to get off, i.e. porn centered around revenge.

    kinda funny misunderstanding

  • Edwin||

    "As a result, some argue for an exemption to deal with revenge porn."

    But there's no way to craft legal language specific enough to deal with only with sites like that. I mean, unless you start federally registering porn producers, and then say something like you can't have sites that accept pics from people who aren't registered porn producers. But that'd be so expensive and involved it wouldnt be worth it for the government to do that

  • Bruce D||

    Just define such photos as one's personal property. Any unauthorized use or posting would then be theft or an actionable violation of copyright.

  • ||

    Of course, nobody mentions the possibility of not putting embarrassing photos of yourself on the internet in the first place. That's be "blaming the victim."

  • ||

    that'd be.

  • Mensan||

    Imagine if ... Reason was responsible for the speech in the comments section of articles?


    That's pretty easy to imagine

  • optimusratiostultum||

    funny how so many people had a good laugh at Carlos Danger but so many have a problem with revenge porn. If you wan't privacy, don't share without a non-disclosure agreement. Anything you share with another person is not confidential without such an agreement.

  • Bruce D||

    Not true. There is an implicit condition of non-disclosure. Otherwise, why would the person consent to such a photo. One retains property rights to such photos unless explicitly waived.

  • Bruce D||

    "To the extent Section 230 should be changed to deal with revenge porn, an appropriate model might be the law’s existing exemption for copyrighted content. Known as “notice and takedown,” it allows copyright holders to give notice to websites that a user has posted copyrighted content without authorization and the website must take it down immediately in order to retain its immunity."

    That's the solution. If one sends a nude photo of oneself to a boyfriend or girlfriend or allows such photo to be taken, there is an unspoken implied, yet very real, condition that it is for personal use only, not to be posted. If that is not the case, then would people actually allow such photos to be taken of themselves unconditionally? I doubt it. In these cases, such images are one's property, only license has been granted to use them personally. Such license can be revoked.

  • alaamiah||

  • alaamiah||

  • alaamiah||

  • alaamiah||

  • alaamiah||

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