Today, just about everything happens on the Internet. That includes flirting, dating, and breaking up. While ex-lovers with broken hearts have sought revenge for centuries, today the implications are far different. Before the Internet, such revenge may have included spreading rumors or writing a phone number in a bathroom stall. Today, however, revenge includes turning private explicit photos of a former lover into non-consensual porn. This is “revenge porn” and California is trying to stop it.
Revenge porn is defined as sexually explicit media that is distributed online, without consent of the pictured individual, for the purpose of humiliation. The majority of photos used for revenge porn are taken consensually during a relationship and meant to remain private between the couple. There are a number of websites dedicated to posting such images and they profit from advertising revenue.
Revenge porn victims cannot go after web hosts directly due to Section 230 of the Communications Decency Act, which provides a safe harbor. While some believe courts may pierce the section 230 immunity, California took a different approach: making it easier to go after those who distribute sexual images of their exes.
Passed by California Governor, Jerry Brown, in early October, the anti-revenge porn legislation would impose a $1,000 dollar fine and six months of jail time upon people convicted of distributing revenge porn. While this may sound good at first, this new legislation has a number of problems.
The most glaring problem is that the law only applies when the sexual images are taken by the person accused of posting them online. This means that the law does not apply when a person takes a photo of themselves and shares it with someone who later posts it to a revenge porn website. Unfortunately, according to the Cyber Civil Rights Initiative, over 80% of revenge porn victims (and they are predominantly women) took the photo themselves and assumed it would not later be available for public consumption.
The law has been heavily criticized, prompting a robust discussion about how to legislate the tricky issue of non-consensual porn. Other ideas include amending the Copyright Act and establishing a federal law against the practice. While these ideas certainly have merit, they are only ideas. California’s law may have critical flaws, but it is at least a meaningful step toward protecting future victims of revenge porn.