Pornography

Should Government Ban Revenge Porn?

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Credit: Matthew T Rader/wikimedia

In an attempt to take down the threat of creepy, vengeful exes, California Governor Jerry Brown signed a bill that bans revenge porn into law on October 1. The law, which took effect immediately, makes it illegal to post identifiable nude photos of another person online without their consent and with "the intent to cause substantial emotional distress or humiliation." Offenders can be sentenced to up to one year in jail and levied with a $1,000 fine.

Legislators in New York are now looking to follow suit with an even more expansive law. Some activists are pushing for the federal government to create sweeping legislation (which, if state laws stand, may be inevitable anyway given that Internet traffic crosses state lines.)

While those advocating for revenge porn laws are trying to rectify a serious social problem that has led to several high-profile cases of young girls committing suicide, the laws unfortunately pose risks of their own.

As with all laws criminalizing speech, revenge porn laws may violate the First Amendment. Back in June, the Electronic Frontier Foundation criticized California's bill, saying, "It also criminalizes victimless instances. And that's a problem with the First Amendment." The ACLU initially voiced concern that the law could be used to censor photos with political implications or containing evidence of a crime.

Likewise, Jeff Hermes, Director of the Digital Media Law Project at Harvard, contends that the law is problematic because it doesn't make exemptions for newsworthy stories. For instance, politicians like former New York Congressman Anthony Weiner (who claimed that someone else maliciously released those famous pics) could use it to protect themselves from appearing in a compromising situation.

Even beyond the laws' specifics is the fact that – regardless of how it's worded – the law criminalizes images, which cannot be inherently harmful. Society's reaction to nude photos is what causes victims' emotional and professional suffering. And since each generation becomes increasingly comfortable with nudity and sexuality, revenge porn laws may soon be another outdated and impossible-to-remove statute on the books.

Revenge porn laws also run the risks characteristic of most criminal statutes: they are inflexible, they could create victims where there are none, they are susceptible to discriminatory police enforcement, and they add more inmates to a country with the highest per capita prison population in the world.

This is in contrast to civil lawsuits, in which the amount of compensation awarded to plaintiffs is determined on a case-by-case basis, defendants are only brought to trial when victims feel seriously harmed, police have less room to discriminate, and offenders pay out-of-pocket rather than in a jail cell. In fact, numerous victims of revenge porn have successfully sued their exes in civil court.

Most importantly, we can resolve the fundamental problems underlying revenge porn through cultural change that doesn't involve the risks associated with legal bans. We inadequately shame those who share images of others' nudity without their consent. We need to be sure to ostracize everyone who even considers posting revenge porn. 

Photo by Texas Wedding Photographer, Matthew T Rader.

NEXT: Does Correcting Politicians Make Them More Truthful?

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  1. …defendants are only brought to trial when victims feel seriously harmed…

    Isn’t that how assault as a crime works? Doesn’t the victim usually have to want to swear out a complaint first?

    1. Not necessarily, all criminal offenses are against the state, not just the victim.

      When I was in my early 20’s my father came at me with a knife because he was drunk.

      We tried to convince the DA that not to press criminal charges but rather get him into a mental health facility because that was what he really needed (turns out he was suffering from PTSD thanks to 2 tours in Vietnam).

      No dice however, the guy wanted to make a name for himself for being tough on Domestic Violence (being the early 90’s this was a big deal at the time) and he pressed charges anyway

      1. Here in Washington, charges would have been mandatory. Prosecutor making names for themselves be damned.

      2. all criminal offenses are against the state

        Which is why it is impossible for a uniformed police officer to commit a crime. As a representative of the state, how can he commit a crime against himself? He can’t. So when he kills some homeless person or something, it’s not a crime because it’s not an offense against him.

      3. I think they still call these Warren Moon laws in TX.

    2. i dont get it….it is already a crime why make a new law….sigh -_-

  2. We need to be sure to ostracize everyone who even considers posting revenge porn.

    Problem is that’s often the only leverage a guy has. I know of personal situations amongst friends where the threat is IMO entirely justified.

    Try not giving people nude photos of yourself if you can’t trust them not to share? If the photos were stolen that is one thing. But if you give a person photographs of yourself I don’t think you can complain what they do with them.


    1. if you give a person photographs of yourself I don’t think you can complain what they do with them.

      ^^^THIS^^^

      1. You can certainly complain. I would guess for most people the entering argument for such a gift is an implied confidentiality. Sure, it’s a case of “you fucked up, you trusted me,” but surely a violation of trust is grounds for an ethical complaint if not a civil or criminal one. I actually think in some cases it should be an actionable injury. If he had explicitly signed a non-disclosure agreement there would be no question about the matter; we should consider the case for recognizing an implicit NDA by default.

        1. we should consider the case for recognizing an implicit NDA by default.

          No, we actually shouldn’t. If you didn’t sign an NDA, you shouldn’t be subject to an “implied” or “default” NDA any more than you are to any other type of “social contract”. Be a responsible adult, and if you don’t want embarrassing pictures of yourself to end up some place you don’t want them, don’t take them and don’t share them.

          Also, obligatory “Fuck off, slaver”

    2. You could argue that there’s an implied (if not explicit) agreement between participants as to the use of the photographs.

      I’m not a lawyer, so wouldn’t this be a matter of civil law?

      1. Well that’s our perennial problem is it.

        Sure we could use lawyers. Or we could use common sense and personal responsibility. Don’t give nudey pics to people you can’t trust? Nah, too complicated and people would pay for their own mistakes. That’s unamerican. Better to get the lawyers involved.

        1. It’s worth noting, it’s not like making this criminal, or suing your ex either, will actually stop nude photos of you shoving a cucumber into yourself from showing up on the internet forevermore.

          Just as a quibble, making it illegal doesn’t prevent the act or delete the internet anyway.

          At the end of the day the only way to actually prevent that is to be more responsible with your nudie pics.

          How do you prove who’s responsible anyway? I’m sure it will get hairy. In the situations I was aware of, none of my friends who have made that threat were dumb enough to do it themselves. They were all conspiring to have OTHER people post the pictures anyway. And you get claims of “Someone stole my cellphone” etc.

          I’m sure it’ll be a lovely lawyer circus but the underlying reality remains the same. Chicks should know better.

          1. It is often the case that a civil judgement cannot reverse the injury. If I run you over in my car the jury can’t heal you, but the trial goes on nonetheless.

            1. Of course, certain types of injury are a lot easier to quantify than others.

          2. ow do you prove who’s responsible anyway? I’m sure it will get hairy.

            Yuck.. get it shaved! 🙂

    3. If you are trying to get “leverage” with an ex, even if she is a horrendous bitch, you are probably just as horrendous as she is and you likely deserved each other.

      IMO, revenge fantasies are one thing, but if you actually go through with them you are a petty asshole. The only way to show you are the better person is to be the better person and let it go.

      1. Probably, yes.

        Friends here really means friends. Seriously it isn’t me. I’ve never done anything like this. I don’t even show nudie pics to my friends because fuck them, they didn’t earn it. I had to put up with the bullshit, they’re MY nudie pics. Get your own.

        And yes – you don’t get into this situation unless you make very poor relationship choices and when that happens those choices are poor on both sides.

        But in one particular case, the pics never made it online. It was about getting her to stop harassing him financially. The law is very biased these days and that’s why men don’t have much leverage.

        1. In the case in question she was trying to fuck over and financially harm his extended family members who were not involved, just because she was nuts.

          You go around trying to ruin people out of spite don’t bitch when they fight back.

          But these days the women get to use the law to ruin ex’s out of spite while for the guys it is against the law.

        2. Seriously though, put yourself in a position of a guy who has, by his own fault for certain, made poor choices in relationship partners.

          You know some of the things that can happen today?

          If a woman were to threaten to claim you were abusive and put you in jail because her ego is hurt by a breakup, it’s not appropriate to warn her about that video you told her you deleted?

          Women have ways of using the legal system to fuck guys over because the system is biased in their favor. The best defense (my own preferred approach) is be careful what sort of lunatics you fuck. Sort of goes hand in hand with be careful what sort of assholes you give nudie pics to. Ounce of prevention worth a pound of cure and all that.

          But if something ever does happen, and you find yourself in a War of the Roses scenario with some dingbat, the only defense you will have against the legal tricks she has at her disposal is extrajudicial tricks. You won’t really have a legal defense. Better keep those photos just in case.

      2. “revenge fantasies are one thing, but if you actually go through with them you are a petty asshole”

        This pertains to childish relationship matters but not all other things in life. Some people need to be taken down a peg. The better person should not always let things of an injustice nature go.

  3. makes it illegal to post identifiable nude photos of another person online without their consent and with “the intent to cause…humiliation.”

    So it IS the Weiner Protection Act.

  4. Most importantly, we can resolve the fundamental problems underlying revenge porn through cultural change that doesn’t involve the risks associated with legal bans. We inadequately shame those who share images of others’ nudity without their consent. We need to be sure to ostracize everyone who even considers posting revenge porn.

    Getting nude for a camera is consent for public dissemination. Unless you are victim of a voyeur, you know the risk you take.

    1. Yeah, this.

    2. You go too far, sir. It’s almost like you’re suggesting that Tweeted pictures aren’t private.

    3. That’s a ridiculous argument.

      What about pictures taken in a medical setting?

      You can argue that the implications and assumptions are different, but that’s merely your opinion. Others may differ.

  5. For instance, politicians like former New York Congressman Anthony Weiner (who claimed that someone else maliciously released those famous pics) could use it to protect themselves from appearing in a compromising situation.

    Call me cynical, but I think this is what it’s really about.

    Politicians want to act like complete assholes and be protected from consequences.

  6. Even beyond the laws’ specifics is the fact that ? regardless of how it’s worded ? the law criminalizes images, which cannot be inherently harmful.

    And if the photos are paired with a full name or contact information? I think it’s safe to say these laws are going to all be poorly worded and overly broad, but I think there is more than cultural harm in pairing naked pictures with information that can be reverse engineered into an address on Spokeo or Facebook.

    1. The original revenge porn site (isanyoneup.com) published nude pics with home address, cell, and email. It was designed to harass the “victims”.
      It ran out of original content and relied heavily on hacked email accounts to get new nude pictures…

      1. If Jesse goes to Westminster (Little Saigon) for lunch, there are some of the best Pho places in the U.S. to try also…

        1. What else might they have in Little Saigon?

      2. That looks a lot better than Lee’s Sandwiches.

      3. I occasionally do work at our office in Garden Grove. I might have to take an extra long lunch and hunt this place down. It looks delicious. Lee’s Sandwiches is the only place anywhere near me that has decent Banh Mi and isn’t an overpriced gastropub, not that I don’t love overpriced gastropubs in their own right.

        1. Could there possibly be a more pretentious word than “gastropub”?

      4. BTW sugarfree, food is never off topic. Ever.

        Time to fire up my Sous Vide Supreme!

        1. Just didn’t want anyone to think I was linking to underage sandwich revenge porn.

          1. Won’t someone think of those poor veal cutlet sliders!

    2. This is what I was going to say.

      I got no problems at all with a law that criminalizes posting pics (nude or not) accompanied with accurate personal identifying information without the express consent of the subject of the photo’s

      On the other hand posting a pic of your bukkakked ex cause you hate her guts with no contact info at all just isn’t an issue as far as I can see and should not be illegal

      1. One of the lawsuits, the link to which I can’t find right now, covered this issue. The guy posted a pic of a girl without any identifying info, she sued, and lost. She claimed her reputation was damaged, and it was, but mostly as a result of her behavior. If you are going to text a selfie of a cucumber in your butthole to a guy you’ve been dating for 2 weeks, it’s kind of hard to argue that he is the one damaging your rep….

        1. The guy posted a pic of a girl without any identifying info, she sued, and lost. She claimed her reputation was damaged, and it was, but mostly as a result of her behavior.

          So her name and info wasn’t linked to the picture, but she decided to sue and put all that in the public record to protect her reputation?

          1. Yup, she Streisanded herself. People do dumb shit when they are angry.

            It’s not unlike the revenge porn victim turned advocate who changed her name, and then called a press conference and publicly linked her new name to her old one…

      2. It’ll be interesting to see how this issue changes as Google and other companies’ facial recognition technology starts auto-tagging images.

        1. “penis recognition technology”

          1. The new iPhone’s fingerprint scanner can handle that!

            This technology will punish those with visually interesting penes and protect those with generic junk. It must not make it to market.

            1. This technology will punish those with visually interesting penes and protect those with generic junk. It must not make it to market.

              This implies that you think your penis is visually interesting. That, or you’re a masochist.

              1. A little of column a and a little of column b perhaps?

      3. I got no problems at all with a law that criminalizes posting pics (nude or not) accompanied with accurate personal identifying information without the express consent of the subject of the photo’s factually accurate speech

        You sure about that?

      4. “I got no problems at all with a law that criminalizes posting pics (nude or not) accompanied with accurate personal identifying information”

        Like the police blotter or the state judicial website?

        1. Exactly

          Men from Manhattan Beach, Hermosa Beach, Redondo Beach and other cities are arrested by MBPD on suspicion of illegal behavior in or near a public restroom on the beach at Marine Avenue.

          The article is accompanied by mugshots, dates of birth and towns of residence for each of the suspects.

  7. Its a property rights question.

    Who owns the pictures in question?

    1. If you don’t believe in IP, the only issue is the property rights of the digital file. If you gifted it to someone without prior agreement, the file is the property of the receiver.

      1. Making bits not copyable is like making water not wet.

      2. If you don’t believe in IP

        Its almost like you know me.

    2. 4chan

    3. This is, so far, the most useful comment.

      (As opposed to folks declaring, for instances, what others’ expectations are.)

  8. While those advocating for revenge porn laws are trying to rectify a serious social problem that has led to several high-profile cases of young girls committing suicide, the laws unfortunately pose risks of their own.

    Assuming these “young girls” are teenagers (?), don’t we already have laws on the books that protect these people from being taken advantage of by pornographers?

    1. They are often taking pictures of themselves and sending them. It’s hard to criminalize self-childporn or the receipt of same by someone who is sent the images. About all you could do is go after re-distribution to parties the creator did not know about/approve of.

      The lesson remains: Don’t take nude selfies unless you want everyone to see them.

      1. The lesson remains: Don’t take nude selfies unless you want everyone to see them.

        This can’t be said enough and needs to be the subject of a class in middle schools. No matter who you are, who else knows about or sees them, or where you store them, they will find their way to the internet and be visible to everyone forever.

      2. Um, not it is not and it is already a crime and there have been numerous instances where the kids in question have been charged with making child porn and those who they sent them to have been charged with possessing it.

        1. I was assuming in my argument the nominal libertarian position on those idiotic laws.

        2. They’re not only been charged with making child porn for their selfies, they’ve been unironically charged as adults.

      3. Yes, I am not a fan of criminalizing Romeos and Juliets. But if Romeo re-distributes these images, I don’t see why he shouldn’t face the same penalties an adult would have under the same circumstances.

        1. I would be fine with that as well.

          Of course, the young girls angle is a bit of a red herring in the debate. Revenge porn of someone under the legal age of consent is already illegal. This is about remedies for adults. I can’t see see a libertarian case for making porn created by adults off-limits to one-party distribution (assuming property rights are established.) Maybe intentional infliction of emotional distress, but cast a gimlet eye at those in the first place.

          1. Define “off-limits”.

            Subject to criminal penalties? I don’t think that’s reasonable.

            Subject to civil liability? Quite possibly.

      4. Don’t take nude selfies unless you want everyone to see them.

        There is a whole series of these things that need to be beat into middle school kids.

        Another is: Dont stick it in crazy.

        1. Dont stick it in crazy.

          You’ll never convince young teens on that one. That has to be learned first hand.

  9. I thought revenge porn involves preloading your buddy’s DVD player with a video involving midgets and horses before his parents/girlfriend visit.

    1. WTF is a DVD player?

      1. I think he meant DVDA.

  10. Criminal law aside, I think this falls into the old common law tort of public disclosure of private facts. So it should be actionable under normal circumstances.

    1. This is exactly what I was thinking. Let the plaintiff sue the defendant for damages. If the images were taken of the plaintiff without his/her consent (or if he/she cannot lawfully give consent in the case of teenagers) in the first place, then it becomes a matter of criminal law. If the images are of lawful acts but are disseminated in manner that one of the party’s has not agreed to, let them take it to a civil trial.

      1. But how can we write zealous, overweaning, trademark legislation with names like Stephanie’s Law if our criminal courts redound to civil common law?

      2. The problem is proving it.

        Without the subopena power of a criminal trial you could never prove that the defendant was the one who shared the images as he could always claim the images were stolen from him

        1. You can subpoena records in civil court, too.

        2. At that point, it reverts back to common sense. If you really want to distribute these images of yourself, it might not hurt to draw up some contracts specifying usage, the way people normally do when they want to maintain control over a property.

          Short version: Just don’t involve yourself in this; it’s a whole lot simpler.

    2. I don’t know, there is the whole “offensive to a reasonable person” element. Maybe IIED?

      1. I think just nude pictures getting published would satisfy that. I imagine if we have any general practice litigators, they’ve argued some of these cases, and I bet publishing nude pictures is a common claim.

  11. For instance, politicians like former New York Congressman Anthony Weiner (who claimed that someone else maliciously released those famous pics) could use it to protect themselves from appearing in a compromising situation.

    Uh, Weiner put those pictures up himself on his own twitter feed. Is he going to demand the police prosecute himself?

    1. No… sheesh, he’s going to demand that everyone who looked at them be prosecuted. Tweets are private.

  12. We need to be sure to ostracize everyone who even considers posting revenge porn.

    Good luck getting even a plurality of people to stop looking at naked people online. People only ask for the source to get more.

  13. No.
    And can government define what it wants to ban?

  14. So if I post a nude photo of myself, I can blame my ex and get her tossed in prison? Sweet!

  15. People who do this are assholes, but as long as the pictures were freely given to that person and no contract agreed to that would limit their dissemination, I don’t see how any person has a case.

    1. “People who do this are assholes,”
      And the jails aren’t big enough to put all the assholes behind bars.

      1. That sounds like a challenge.

    2. For me it comes back to is the poster trying to generate IRL harassment by posting identifying information. I think that’s a harm that deserves legal recourse. The naked photo portion is just a vehicle for generating harassment and is kind of tangential.

    3. A contract when you’re in the throes of passion so to speak? I think a certain reasonableness is in order here. If someone posts pictures of someone with the malicious intent of harming someone there should be a tort remedy. Perhaps under public disclosure of private facts as Pro lib mentioned above.

    4. …and no contract agreed to that would limit their dissemination…

      It’s hard to imagine that most of these aren’t accompanied by “These are just for you, OK? OK.”

      1. Even if that is common (which I doubt), it doesn’t make a contract until the recipient agrees.

        1. The second OK is the recipient agreeing.

  16. Teach your daughters some self-respect and to not date assholes. Or, if that’s too hard, sue away and see what sticks.

    1. You know what else “sticks”…

  17. How much so called “revenge porn” is really what it claims to be though? There’s probably hundreds if not thousands of videos on various porn sites purporting to be “real ex-GF” videos that suspiciously feature well known professional porn stars.

    1. Probably. So I hear.

  18. I don’t think government should have a role in this. If you’re that stucking fupid to let your significant other film your sexual excapades, then you deserve what you get.

    1. I started to say something harsher but I think you covered it. If anything, this should be relegated to civil law, if anyone feels so moved to ask a jury’s sympathy for their failings.

  19. You already have civil recourse. If that’s not satisfactory, then make the posting of “revenge porn” acceptable for use in justifiable homicide cases.

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