Revenge-Porn New Laws for January

Revenge-Porn New Laws For JanuarySenator Anthony Cannella of California has announced new amendments for January to the current anti-revenge-porn laws of that state, legislation currently framed under the blanket cyberbullying category. The amendments will broaden the criminalization of revenge-porn, applying it to self-shot images, so that anyone distributing revenge-porn will be liable. Cannella intends to present the amendments to the upcoming session

Under the current law (bill SB 225), passed in October 2, 2013, distributing sexually explicit photos taken of SOMEONE ELSE with the intent to cause harm or humiliate is illegal (misdemeanor). Currently there is no legal protection for people who take pictures of themselves when those pictures wind up online. There is no protection for people who give photos of themselves to others and later regret it, as those photos are the legal property of the recipient. There’s no legislation against posting any explicit photos if the subject is over 18 years old. Currently, most revenge-porn is not illegal.

Currently, an estimated 80 percent of revenge-porn victims take the pictures themselves, according to Cyber Civil Rights Initiative.

The SB 225 California law–a law brought by Cannella–was the first revenge-porn specific law in the U.S. Critics have argued against the perceived loopholes in the law. Notable among these “loopholes” are that the poster must be proven to have intended to cause serious emotional distress and the victim must be proven to have suffered such distress.

Sen. Anthony Cannella announced the amendments to the current revenge-porn law and proposed further amendments. Cannella wants to remove the loopholes as well: the burden of proving intent to cause emotional distress and that the victim actually suffered. This amendment is sometimes called the “Selfie Amendment.” This was left out of the original bill because, it was reasoned, self-shots implied consent. If Cannella’s amendments pass, it would be illegal to knowingly distribute explicit images of a person who has not consented to such distribution.

The laws being considered touch upon the First Amendment–the freedom of speech–which currently protects pornography, and so the laws must be written carefully so as not to violate constitutional rights.

A key argument against such laws is that making it a crime to distribute private images with the intent to harass or annoy might end up in charges against a person who leaks information that the public needs to know or has an interest in, because it was sent with a malicious intent, such as the case of ex-congressman Anthony Weiner, who denied sharing lewd photos of himself, which denial was later proved a lie.

Cannella’s announcement comes after Christopher Kevin Bollaert, creator of a revenge porn website called ugotposted.com, was arrested and charged December 11 in Sand Diego. Bollaert was charged with 31 felonies, including extortion and conspiracy, but most of the charges were for identity theft. There were also allegations of “child pornography.” Bollaert started the website in December 2012. He faced up to 22 years in prison.

Bollaert’s site was set up so that posters could include the victim’s personal information: phone number, location, and Facebook. Bollaert later put up a second site called changemyreputation.com, catering to victims who wanted their images removed from his site. The ugotposted.com site was taken down as a result of the criminal investigation.

The Guardian reported that Bollaert responded to these victims by offering to remove their images for 300-350 dollars (extortion). The site’s PayPal account showed payments in the tens of thousands of dollars.

At least two victims have said that they were under 18 (child pornography).

Bollaert has also been charged in civil suits in Illinois, Ohio and Michigan. Since Bollaert did not respond to the lawsuits, the judge entered default judgements, ordering Bollaert to pay three hundred thousand dollars to a Michigan woman and the same amount to an internet company Bollaert used to display nude photos. Bollaert has ignored these charges.

Bolleart’s trial, if it succeeds, may be the first major revenge porn prosecution.

Bollaert’s partner in the website, Eric Chanson, was also named in the lawsuit. Chanson attests that the two businessmen always removed user content with a subpoena and cooperated fully with authorities when contacted.

Some legal scholars doubt the case against Bollaert. The current California revenge-porn law does not apply to Bolleart’s case. The current law is not designed to apply to a site operator. Identity theft is a questionable charge because the site operator isn’t pretending to be or passing himself off as the people in the pictures.

Currently, only California and New Jersey have any law applicable to revenge porn. New Jersey’s law is not targeted at revenge-porn at all; in New Jersey it is illegal to distribute graphic images of a person without consent. Other states considering are legislation, such as Florida, Wisconsin, Maryland, New York, and Rhode Island. In the absence of such laws, victims are left to pursue civil litigation, commonly torts like invasion of privacy, stalking, or harassment. These charges are usually struck down immediately because sites are immunized from liability for user-generated content by Section 230 of the Communications Decency Act. Anti-revenge-porn advocates are pushing for federal level legislation.

Other people interested in stopping revenge-porn, such as Amanda Levendowski, NYU Law student, are looking at how copyright law might be able to combat the problem. Since around 80 percent of revenge-porn victims took the pictures of themselves, they own copyright to those images, which copyright is infringed whenever initial, interim, and subsequent copies and displays of those self-shot images are made.

If successful, the new amendments to the California law targeting revenge-porn would be introduced to the state legislature and take effect in January 2014.

By Day Blakely Donaldson

UT San Diego

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One Response to "Revenge-Porn New Laws for January"

  1. jon doe   January 16, 2014 at 10:02 pm

    is revenge porn illegal in michigan if the victim knew they were being photographed and willingly took the pics.

    Reply

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