Smartphones now provide the ability for users impulsively to take photographs and videos of life as it happens. And lovers in the midst of passion at times record their amorous activities with the intent of keeping revealing photos and videos private. What happens, though, when love dies, but the photos and videos remain? Do they stay private?
Unfortunately, often times the answer is “no.”
Indeed, “revenge porn sites” that showcase nude and sexual photos and videos posted by former lovers, boyfriends and husbands are showing up with increasing frequency on the Internet, according to a recent New York Times article. And not only are intimate photos and videos getting posted for public review, but they also are provided with identifying information and disparaging comments. Thus, a woman who simply thought she was sharing a private filmed moment, now may find that moment broadcast to the world in a negative light — and with the world knowing exactly who that woman is in the photo or video.
This has had devastating consequences for women who have been so revealed. Indeed, some of the subject women have subsequently changed their appearances or have changed their names so that they are less likely to be associated with the photos and videos posted on revenge porn sites.
There have been some civil lawsuits filed against the perpetrators of revenge porn sites. Some of these lawsuits have yielded monetary settlement payments or have resulted in the shutting down of certain sites. However, even if a site is shut down, it may be too late, as the offending photos and videos may have gone viral elsewhere on the Internet.
According to the New York Times article, there has been a movement afoot to allow for criminal penalties when it comes to revenge porn sites. This notion has been percolating in at least a few states. New Jersey, for example, apparently has a law that could permit criminal prosecution relating to revenge porn sites, although that was not the specific intent behind that law when enacted. And a bill relating to criminal prosecution of revenge porn sites reportedly did not make it through the Florida legislature recently. While California is also considering a revenge porn site law, it apparently punishes only certain types of revenge posting as misdemeanors, and may apply only when the poster had the intent to cause serious distress.
Some legal scholars believe that revenge porn legislation could run afoul of First Amendment freedom of speech protections, while others believe that such laws could pass constitutional muster so long as they are narrowly drafted to address nude or sexual photos or videos without consent. And while some scholars believe that revenge porn site legislation should be handled at the state level, others believe that there should be federal legislation for purposes of uniformity.
Plainly, there will be further developments in this area. Meanwhile, people should be very careful in terms of allowing others to film their intimate activities. Regrettably, a lover today could end up being an enemy tomorrow.
Eric Sinrod is a partner in the San Francisco office of Duane Morris LLP, where he focuses on litigation matters of various types, including information technology and intellectual property disputes. You can read his professional biography here. To receive a weekly email link to Mr. Sinrod’s columns, please email him at ejsinrod@duanemorris.com with Subscribe in the Subject line. This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.