Update January 2017: This 2012 post about revenge porn websites is largely out-of-date. Since we first published this piece, most states have passed specific revenge porn laws. But, for the sake of Internet law history, we’ve decided to keep it posted.

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Update March 28, 2013: Revenge porn website operator, Hunter Moore, lost a $250,000 lawsuit! The ruling is significant because it demonstrates that judges are willing to dig for ways to prosecute revenge porn purveyors. Plus, word on the street is that a class action lawsuit is waiting in the wings.

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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-sites from accommodating the vice. Some retaliation sites are harmless, anonymous gripe 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, without permission, is illegal; but the law is not always moral, and in many cases these salacious websites are compliant.

Revenge Porn Websites: The 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 infamous revenge porn sites. Thankfully, netizens essentially shuttered the sites by shaming them out of existence.

Redditors’ displeasure and a Gawker article ended r/jailbait and r/creepshots. Affiliate marketing community, WickedFire, was so disgusted by both the content of IsAnyOneBack.com and what they felt was obstinate foolishness on the part of its founder, Andrew Myers, that the community (arguably) doxed him out of business. To seal the deal, Bullyville.com bought Moore’s domain name, rendering it unusable to prevent anyone from trying to revive the site.

Despite the public’s outrage over revenge porn websites, Hunter Moore recently announced plans to expand his e-porn empire. Netizen-enemy #1 will operate HunterMoore.tv. What’s different about his new format? Geo-location. 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, 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, they’re usually aghast at the paucity of U.S. laws that govern civil 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.

In other words, once you hit send on that intimate portrait, it’s the property of the recipient. If the person in the photo is 18 or older, there’s very little recourse. If, however, the subject is unawares of the the photo, and the setting is not a public place, a constitutional argument could work.

Laws That Play A Role In Revenge Porn Litigation

In addition to the Fourth Amendment, pics of underage people, stalking, computer harassment, and copyright infringement are actionable under the law. Though victims may not be able to sue site operators, multiple laws are available to go after the uploaders.

Section 230 of the Communications Decency Act – The infamous safe harbor provision — Section 230 of the CDA — protects site operators and editors from being held liable for third-party defamatory content. That’s why many revenge porn websites are, technically, legal. All they have to do is say, “Hey, it wasn’t me who uploaded the material in question.” Sure, victims can seek civil actions against people who post photos, but typically not the sites on which the photos sit.

The Child Protection and Obscenity Enforcement Act (18 U.S.C. 2257) – Passed in 1988, U.S.C. 2257 protects minors from participating in pornography. The law outlines the exacting paperwork adult-entertainment entrepreneurs are required to document and retain, which they must produce when demanded by officials. Now, if you post — or facilitate the posting of — a picture of an underage person, prepare for jail.

Federal & State Stalking and Cyberstalking Laws – The new (now defunct) Hunter Moore site was rumored to incorporate physical address information tied to a mapping app. In short, as Mr. T would say, I pity the fool who gets caught stalking via the site, as they will land in legal trouble. A couple of federal Internet harassment and stalking laws can be used to prosecute.

1. 18 U.S.C. 875(c) – 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.
2. 47 U.S.C. 223 – Section (a)(ii) 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.

2016 Update: Most states now have revenge porn laws.

Publicity Rights Intellectual Property Violation – Technically, websites that serve up advertisements are considered commercial operations. So, theoretically, it’s possible for plaintiffs to claim that their “likeness” is being used to profit, without permission.

In the U.S., personality rights are state-sanctioned. 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.