The Law is Playing Catch Up When It Comes to Revenge Porn

In spring 2018 Chenoa Cooper started writing addresses down on slips of paper and her friends knew that if she was running late, she couldn’t warn them.

That is because she would leave her phone at home, it had become an abuse machine.

Graphic sexual photos and videos of her had been posted online.  Posted along with her name, email address and Facebook page.

Chenoa believes her ex-boyfriend was behind it.  She says he was furious that they had broken up and was the only other person who had the photos and videos that were posted.

It was the modern version writing a girl’s name and number on the bathroom stall wall, except that instead of just a few people seeing it, half the planet was able to see it.

Another problem is that once photos and videos like that are online, it is very difficult to remove them.

She said that she blocked so many things – hundreds or thousands of people – that she has lost track of it.

Whenever a new post went up, she relived the original virtual assault.

She would search for a computer to notify the hosting company of the image.

She would interact with strangers who sent her salacious emails to find out where they found her pictures and videos.

It was a never ending battle.

More importantly, the law was of very limited help.

The law doesn’t deal very well with new and the field of non-consensual porn or cyber-rape is VERY new.

She sued under a new New York City law that makes unlawful disclosure of an intimate image punishable by one year in jail and a $1,000 fine.  Of course, you have to be in NYC and you have to have a suspect.  And a willing DA.

Some states have no laws on the books and even in those states with strong laws, you have to be able to convince the DA that they are likely to win.  That might be harder to do than you think.

But it is even harder than that.

Every time a new image is posted, the victim has to start over.  Try to figure out who posted the revenge porn and again try to get law enforcement to prosecute.

The process to get the porn removed is hard and can take weeks.  The victim has to figure out each site’s process and convince the site that the posting is unauthorized.

Currently, there is no way to force a web site to take images or videos down, although many will – if you follow a complex process and are very persistent.

To give you an idea of how hard it is to get images or videos taken down, attorneys have resorted to copyright infringement.  *IF* the picture is a selfie then the victim can claim copyright infringement.  Using laws like the Digital Millennium Copyright Act and similar laws, lawyers can force sites to remove the images or videos. In that limited case, the takedown can happen very quickly – if the site is in the U.S.

If it is not a selfie, then the copyright belongs to the photographer.  For example, if in Chenoa’s case, if her ex-boyfriend took the picture, then she doesn’t own the copyright.

Also, the fact that the victim is demanding the takedown is likely a public record.  If the victim doesn’t want her (or his) name in the public record, then the copyright can be assigned to someone else, like a lawyer and then the lawyer can sue on his or her own behalf.

What counts as revenge porn varies from state to state.  In some states, you have to prove an intent to harm, for example.

Some say there are some first amendment free speech issues and even though I would argue that your rights end when you start harming me, the courts have been reluctant to mess with the first amendment.

Bills have been introduced at the federal level, but none have gone very far.

Unfortunately, I don’t think the law is going to help much anytime soon, which pretty much leaves the victims on their own to clean up the mess.  Which could go on for years.

One problem is identifying the poster.  Another is convincing the web site to take the content down – especially if the web site is not in the U.S.  A final problem is convincing overworked and understaffed prosecutors to take a case that they likely don’t understand, are unfamiliar with the law, may be hard to win and take a long time to prosecute.  Especially when they have murder cases to deal with.  Hopefully these problems get resolved and soon.  I hope.

For more information on this very important subject, read this article in Law360.  Normally articles on this site are behind a paywall, but in this case, it seems to be free.

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