Revenge Porn Illegal? New Laws May Not Be Vengeful Enough

As of last week, it is illegal to post nude photos or videos of someone online without his or her permission, a practice termed, “revenge porn.” California Gov. Jerry Brown signed into law Senate Bill 255, which penalizes those who intend to cause emotional distress or humiliation through “revenge porn” with a sentence of up to six months in jail and a $1,000 fine.

This type of law has been gaining momentum in legislatures across the nation. New Jersey enacted a similar bill in 2003 that “makes it a felony to post secretly recorded videos or photos online,” as reported by CNN. New York and Wisconsin are two more states drafting legislation. New York State Senator Phil Boyle told a local radio station he “wants to pass a ‘revenge porn’ law in New York that will be even tougher than the one just passed in California,” according to Business Insider.

The California law has been getting a lot of slack for being both too weak on the issue and infringing on constitutional rights.

In Forbes, Eric Goldman cited several areas where the California legislation lacks in scope including the issue of “selfies,” and that the law does not apply to recordings taken by the victim him or herself. The law only applies to the person who makes the recording; anyone who might redistribute it cannot be charged under this law, and “confidentiality disputes,” apply to “circumstances where the parties agree or understand that the image shall remain private,” which may not always be the case in these proceedings.

On the point of privacy, Andy Sellars, Staff Attorney at the Digital Media Law Project explained to PolicyMic that these cases of revenge porn have to do with private citizens and their private concerns. “Ninety-nine percent of these cases are not public concern, and therefore, the first amendment would not stop their prosecution,” he said. Because a nude photo Johnny John took of his ex-girlfriend and posted on MyEx.com is not of legitimate public concern, he can be prosecuted under this California statute.

To be clear, though, the user who posted the material would be the one subject to prosecution, not the site, or host of the content. Under section 230 of the Communications Decency Act of 1996, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,” as sourced by the Legal Information Institute of Cornell University Law School.

To add to victims’ frustrations, they are not protected if the posted material if they themselves took the photo. A survey conducted by the Cyber Civil Rights Initiative of Florida found that 80% of revenge porn victims took the photos themselves. Senator Boyle said he wants his New York legislation to include “selfies” situations.

It’s a tricky line to walk between what is right for the individuals affected by this practice and protecting our public and private freedoms in the internet age. However, it’s hard to deny the hurt, anger and humiliation you could feel if you came across a photo of yourself intended for someone you thought was special with the headline, “F*ck this whore.”