Update March 28, 2013: Revenge porn pusher, Hunter Moore, lost a $250,000 lawsuit! The ruling is significant because it demonstrates that judges are willing to dig through the books to find ways to prosecute revenge porn website operators. And word on the street is that a class action lawsuit is hitting the courts soon.
Original Article (Dec. 4, 2012) Below
“Before you embark on a journey of revenge, dig two graves.” – Confucius
They say revenge isn’t worth the hassle, but that hasn’t stopped shame-website operators from accommodating people who crave the rush of revenge. Some retaliation sites are harmless, anonymous grip forums; others delve into more dangerous, sometimes pornographic, territory – like Hunter Moore’s now-defunct IsAnyOneUp.com, where users could submit “birthday suit” pics of ex-girlfriends.
Most would assume that posting nudie pics of someone, without permission, is illegal; but the law is not always moral, and in many cases these salacious websites operate on the right side of it.
An Overview of the Revenge Porn Site Scene
Two Reddit communities – r/Jailbait and r/creepshots – in addition to Hunter Moore’s IsAnyOneUp.com and Andrew Myers IsAnyOneBack.com – are the most discussed revenge porn sites. Jailbait, Creepshots, Myers’ short-lived attempt and Moore’s original platform are no longer in operation; not because they were illegal, per say, but because the Internet community self-policed, mobilized, and dox-shamed them off the Web.
Redditors’ displeasure and an article on Gawker were the beginning of the end for r/jailbait and r/creepshots. Affiliate marketing community, WickedFire, was so disgusted by both the content of IsAnyOneBack.com and what they felt was the obstinate foolishness of its founder, Andrew Myers, that they quickly doxed him, and arguably put his operation out of business. Bullyville.com bought Moore’s domain name, rendering it unusable in the event someone tried to revive the site.
Despite the public’s outrage over porn revenge sites, Hunter Moore recently announced plans to expand his permission-less E-porn Empire. Netizen-enemy #1 will operate HunterMoore.tv. What’s different about his new format? Geo-loaction. In addition to listing Facebook and twitter accounts along with the pics, Moore’s new site asks for physical addresses, which he allegedly will incorporate into a mapping function, effectively allowing individuals, or others, to stalk their targets. UPDATE: Hunter Moore recently recanted his position on geolocation. He will NOT be incorporating it into his new platform.
Legally Speaking, It’s Not a Matter of Morality
When people first hear about revenge porn sites, they’re usually aghast at the paucity of U.S. laws that govern civil privacy of this nature, much less online privacy. While the Fourth Amendment grants citizens “the right…to be secure in their persons, houses, papers, and effects,” it doesn’t protect those who “gift” naked pics; once you hit send, it’s the property of the recipient. As such, if the person in the photo is 18 or older, there’s very little they can do. If, however, the subject of the photo is unaware the photo was taken, and the setting is not a public place, a reasonable expectation of privacy constitutional violation could be argued.
Laws That Can Play A Role In Revenge Site Litigation
In addition to the Fourth Amendment, pics of underage people, stalking, computer harassment and copyright infringement are actionable under the law. While victims may not be able to legally sue site operators, multiple laws are available to go after the person who uploaded the photos.
Section 230 of the Communications Decency Act – The infamous safe harbor provision — 230 of the CDA — protects sites operators and editors from being held liable for third-party content of which they are not aware; aware in the sense that the operators had no hand in crafting the content. That’s why a lot of these revenge sites are, technically, legal. All they have to do is say, “Hey, it wasn’t me who uploaded the material in question.” Sure, the victim can seek a civil tort action against the user who posted the photo, but oftentimes not the site operator.
However, in cases of revenge porn, I suppose it could be argued that by providing the platform, in addition to coming up with the focus of the site, the operator had a role in crafting the content, and therefore should not be granted safe harbor provisions.
The Child Protection and Obscenity Enforcement Act (18 U.S.C. 2257) – Passed in 1988, 2257 primarily protects minors from participating in pornography. The law outlines the exacting paperwork adult-entertainment entrepreneurs are required document and retain, which must be produced relatively quickly when demanded by officials. Now, if you post a picture of an underage person on one of these revenge sites, or if you facilitate the posting of said salacious pics, prepare to go to jail – do not pass go, do not collect $200.
Federal & State Stalking and Cyberstalking Laws – The new Hunter Moore site is rumored to incorporate physical address information that will be pumped into a mapping app; the added functionality is expected to lead to offline stalking. In short, as Mr. T would say, I pity the fool who gets caught stalking, as it’s almost a guarantee they’ll land in legal trouble. A couple of federal Internet harassment and stalking laws can be used to prosecute stalkers:
18 U.S.C. 875(c) – This regulation can be used for interstate threats. While the law includes electronic communication devices, like email, a physical threat must be present to prosecute under this statute.
47 U.S.C. 223 – Section (a)(ii) of this federal statute states that anyone who “initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene or child pornography, with intent to annoy, abuse, threaten, or harass another person” is legally actionable.
Cyber-stalking laws are already on the books in CA, TX, AZ, MO, WV, NC, MI, and GA. Other states are expected to follow suit; many, like New York, already have proposals working their way through the state legislative bodies.
Publicity Rights Intellectual Property Violation – While I have never heard of it being used, technically, if a website serves up advertisements, it’s considered a commerce operation. So, in theory, it’s possible for a plaintiff, who is looking to sue the site’s operator, to claim that their “likeness” is being used to profit, without their permission.
In the U.S., personality rights are state-sanctioned, and over half recognize publicity rights. In these types of cases, the defendant may argue “fair use.” If, however, the images used are low-resolution thumbnails, the defendant may escape unscathed, because low-resolution thumbnails are considered fair use — a legal precedent established in Kelly v. Arriba Soft Corporation. If the pics are full-sized, then the plaintiff has a legal leg, albeit precarious, to stand on.
The Final Analysis
While statutes oftentimes legally protect shame-site proprietors, the potential public backlash is usually more detrimental than financial damages demanded by a court. If you chose to go the revenge site route, prepare to be “doxed” and publicly maligned, which could lead to a severe lack of future employment options – not to mention the serious threat of bodily harm from unhappy *sextees* and the people who love them. If you’re willing to chance the public censure and scorn, well, the law is mostly on your side.