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California’s Attempt to Avenge Revenge Porn

So your boyfriend or girlfriend broke up with you? Maybe they cheated on you or worse yet, told you that you weren’t the “one.” Now, in order to make them feel some semblance of the pain you felt, you think it’s a good idea to post sexual pictures you two shared with each other on the web. This might certainly accomplish the objective but be careful if you live in California, because you may have just committed a misdemeanor punishable by up to one year in jail.

California legislatures are currently discussing a bill that would make so-called “revenge porn” a crime. “Revenge Porn” is the act of posting or distributing nude/semi nude pictures of an individual without their consent. While it’s obvious that this type of posting and distributing causes emotional harm, it also has other consequences, like making it difficult to find a job. To make matters worse, the effects of revenge porn are amplified by websites dedicated solely to these kinds of posts! Talk about a bad breakup — now they go viral.

The problem is big enough that it’s starting to get noticed. California has drafted a bill in order to tackle the problem after New Jersey and Florida attempted to address the issue as well. The California version of the bill criminalizes the taking of a photograph of another “identifiable person with his or her consent who is in a state of full or partial undress in any area in which the person being photographed or recorded has a reasonable expectation or privacy, and subsequently distributing the image taken, with the intent to cause serious emotional distress.” In layman’s terms: You can’t distribute a revealing photo if the subject hasn’t given you permission. Although a good attempt at addressing a serious problem, the California statute goes too far and also doesn’t go far enough, leaving it open to criticisms that it is too strong, as First Amendment protectors will claim, and that it is too weak, as potential victims of revenge porn will argue.

The California statute as it stands has problematic First Amendment implications. In particular, many would argue that this type of “speech” is protected, and they could point some support from the Supreme Court, which gets pretty touchy (rightfully so) about free speech. In a very public case Snyder v. Phelps, the Supreme Court dismissed a lawsuit brought against the Westboro Baptist Church for anti-gay demonstrations at the funeral of an American veteran. Upholding the group’s right to protest, Chief Justice John Roberts wrote that although speech can “inflict great pain,” “we cannot react to that pain by punishing the speaker.” Similarly, it may argue that although posting revenge porn causes emotional distress, this is not enough of a reason to limit the speech.

There are also some serious practical problems with the language in the proposed bill, which may “chill” valuable speech — another red flag for our highest justices. Fear of legal ramification may stop someone from distributing media that could have a positive effect, such as revealing that a crime or impropriety has been committed (think adulterous behavior, a la Anthony Weiner). Although this type of dissemination wouldn’t be done in order to cause emotional distress, we can imagine someone being hesitant to distribute important photos for fear of breaking the law. Take another potential spillover effect: an actor or actress consents to having a pornographic video taken by a producer and then later decides they don’t want the video to be distributed. Then when the video is distributed, the victim can claim it was done to cause them emotional distress. Regardless of how much you are concerned about the chilling effect on the porn and tabloid industries, the Supreme Court will be.

Where the statue may go too far in one direction, it also ironically doesn’t go far enough in the other. For one, the statute only contemplates photos taken by the perpetrator. If someone were to send a significant other a personal pornographic photo, which was subsequently distributed, perhaps multiple times, was the law violated? I suspect this would be a gray area, as it would be difficult to place liability on the person who distributes the photo as the photo becomes more and more displaced from the original transmission. For example if Jake sends a photo to his girlfriend Bella who then forwards it to her best friend Ed without telling him the background, should Ed be held liable for distributing the picture?

And then there’s the problem of motive. There are many reasons, other than inflicting emotional distress that may lead someone to post a pornographic photo: bragging rights, compensation, or as a joke even. Distribution for these motives would not constitute a crime because the intent may not have been “to cause serious emotional distress,” but it could certainly still create similar emotional effects on a victim.

Lastly, the criterion of “emotional distress” does not take into consideration other kinds of harm that revenge porn may cause. A victim can be severely disadvantaged in getting a job after pornographic pictures have been distributed. Revenge porn may also have adverse reputational effects or even constitute harassment. Such repercussions may very well follow a victim for years.

We do, thankfully, have several torts (civil as opposed to criminal remedies) that could cover these kinds of effects. You can sue someone and recoup damages for “tortious interference of contract,” “infliction of emotional distress”, and even the tort of “false light” (defamation for a non-public figure). While it is tempting then to leave it to the civil system, that just won’t do either. Although victims of revenge porn can seek justice through the tort system, it requires money, time, and can be quite embarrassing. I suspect this is the reason that CA and NJ have contemplated making revenge porn a crime in the first place. Unfortunately, they have potentially overreached, exposing themselves to First Amendment infringement, and at the same time not reached far enough by creating loopholes around origin, motive, and effect.

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Lawmakers Aim To Limit Revenge Porn Postings

SACRAMENTO (AP) — State lawmakers are attempting to limit a distressing social media phenomenon known as “revenge porn,” where spurned suitors post intimate photos of their ex-lovers on the Internet for all to see.

The Assembly is set to debate a bill that would make such conduct punishable by up to a year in jail, while Gov. Jerry Brown is considering separate legislation that would make it a crime to impersonate or bully a domestic violence victim online.

The measures are forcing lawmakers to consider where to draw the line between unfettered free speech and privacy rights.

“Right now law enforcement has no tools to combat revenge porn or cyber-revenge,” said Sen. Anthony Cannella, a Republican from Ceres who proposed one of the bills. “Unfortunately it is a growing trend and there are a lot of victims out there, a lot more than I ever imagined. … It’s destroying people’s lives.”

Under his SB255, perpetrators who post identifiable nude pictures of someone else online without their permission with the intent of causing serious emotional distress or humiliation could be charged with a misdemeanor. They could face up to six months in jail and a $1,000 fine for a first offense, with a year in jail and a $2,000 fine for repeat violations.

Current California law allows victims to sue their virtual assailants in civil court, but it is an expensive and time-consuming option that does not seem to be much of a deterrent, he said.

That was the experience of Holly Jacobs, who sent intimate photos to her boyfriend during their 3½-year long-distance relationship.

In January 2009, a month after they broke up, a friend informed her that a nude photo was posted on her Facebook profile. By November 2011, a collage of photos of her went viral on more than 200 websites, accompanied by an explicit video from a web chat that she says was secretly recorded. The posts included her full name, email address and the name of the Florida university where she worked, forcing her to tell her parents and university officials. She began getting emails from strangers attempting to set up liaisons.

“Emotionally, the situation put me through hell and back,” Jacobs said in a telephone interview. “I just felt so alone and you blame yourself. You have a lot of people in your life that judge you and say this was your fault. … It took me a long time to realize I was the victim in this.”

She said she equates the judgmental reaction she received to the blame-the-victim attitude that rape victims often confront: “You shouldn’t have been wearing that outfit, you shouldn’t have been drinking, you shouldn’t have been walking alone.”

After spending months trying to get the photos removed, repeatedly changing her phone number and quitting a university job she loved, Jacobs eventually legally changed her name. In her darkest moments, she considered suicide.

Then she got mad and she got even, creating endrevengeporn.org a year ago, which sometimes records 1,200 hits in a single day. Jacobs said she has been contacted by women in similar circumstances around the world.

From her home in Miami, she now lobbies for states to adopt laws to criminally punish revenge porn.

Aside from Cannella’s bill awaiting action in the Assembly, lawmakers already sent the governor AB157 by Assemblywoman Nora Campos, D-San Jose, which would outlaw stealing the online identity of domestic violence victims. It lets judges issue protective orders barring abusers from impersonating a victim online, and came in response to the concerns of judges who worried that doing so would violate free speech rights.

Sen. Cathleen Galgiani, D-Stockton, who carried AB157 in the Senate, said state law has not kept pace with technology.

“Advances in technology and the increased communication on social networking websites have enabled abusers to get around restraining orders,” she said.

The Legislature has attacked the problem piecemeal as loopholes have been discovered in the state’s original 2006 cyberbullying laws.

A 2010 law made it a misdemeanor to impersonate someone on the Internet to intimidate, threaten or defraud them. Campos authored a law last year that lets schools suspend or expel students who harass their classmates on social networking sites, as well as a 2011 law targeting bullying on social networking sites such as Facebook.

Her bill this year was approved with no dissenting votes, while Cannella’s legislation had just one opponent in the Senate — Democratic Sen. Leland Yee of San Francisco. He and the American Civil Liberties Union fear the bill could interfere with free speech rights.

“For me it was more an issue of the definition being overly broad. We just really have to be careful of that slippery slope,” said Yee. He said a better approach would be to educate Internet users, particularly children, about the irreversible harm that can be done online.

Florida’s legislature rejected a similar bill this year after First Amendment concerns surfaced there, while Missouri’s supreme court last year cited concerns about free speech in striking down part of a 2008 law enacted after a teenager who was teased online committed suicide.

Cannella believes that’s not an issue with his bill.

“This is intimidation, this is harassment, this is bullying,” he said. “This goes way beyond free speech.”

 Lawmakers Aim To Limit ‘Revenge Porn’ Postings – CBS Local

revenge porn – Google News

Please go to EndRevengePorn.org to sign the petition. Help us make the spread of revenge porn a crime.

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