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Every few weeks, Twitter is buzzing with debate over 'leaked' nude pictures that the recipient of said photos has posted online (often for revenge, but sometimes for no other reason but to shame the sender.) Beyond simply looking like an awful, abusive person for sharing something so intimate, there may be legal ramifications for posting someone else's nudes. Our legal experts explain the possible criminal and civil actions that a victim can explore after being violated in such a way.

 

[CRIMINAL] CHARLES F. COLEMAN, JR: That amazing cuffing situation that you thought was this ended up way more like this and somehow in between, there was that “Partition" inspired uh…video that you may have filmed while trying to spice things up….oh, and um, those other “selfies” during your trip to St. Marten with the girls. #seemedlikeagoodideaatthetime.  You wake up on a random Tuesday and your phone is blowing up asking whether you’ve seen the ex’s Instagram page and just that quick, your Twitter mentions have blown up over…your unmentionables. Not only are you upset at this odious violation of privacy and your personhood in general, but these pics were before you just dropped an additional 10 lbs on that crazy juicing diet with your sister. Jokes aside, in today’s digital age stuff like this happens all the time and folks who find themselves in the position of unwanted items being publicly displayed usually want justice. What recourse do they have? Can they call the police? Will the criminal justice system afford them the relief they seek?

Unfortunately, unless you live in New Jersey or California, your chances of a successful criminal prosecution for “revenge porn” are slim. That’s because they are the only two states with laws on the books regarding revenge porn. While several states are currently in the process of developing laws in this vein, there have been recent instances where offenders have been acquitted because of inadequate statutes needed to prosecute them.

If you’ve willingly sent naughty pics or videos to a significant lover, you are generally turning over those images to them for use in whatever way(s) they choose, with some limitations. They are not able to display the media publicly if it is of an offensive sexual nature, but the terms “public”, and “offensive sexual material” are all subject to the local jurisdiction where you reside. For example, in some jurisdictions, Twitter is not considered a public forum.“What about harassment charges?” To be convicted of harassment, a person would have to actually make contact with their victim. Posting your goodies on Instagram with a click of a button requires absolutely no contact with you—especially if you aren’t tagged in the photos. So, generally, right now even if the police could find reason for an arrest, it is unlikely that the charges will result in a legitimate criminal prosecution.

There is some hope, however. As more states have had to grapple with individuals' rights being violated without their consent or any way of punishing the offenders, there has been a growing movement in state legislatures to address this with new laws. Until those are passed, sadly, it will be hard to convict someone for simply being a creep. The best advice on this one is to be super-cautious, keeping in mind that once you send those photos out, you have almost no control over where they end up or what someone does with them.

 

[CIVIL] GEORGE GARDNER, III: Sexual harassment is a pervasive phenomenon that, in our technological era, has taken shape in various forms on the Internet. One such form is “revenge porn”—the posting of intimate images online, without a person’s consent, for the purpose of humiliating that person. This virtual avenue for harassment is exacerbated by the lack of clear legal redress for such activity. With increased exposure in recent months, revenge porn has been become the focus of some lawmakers.  And since so much of the law is uncertain, this legislative attention is welcome. Criminal laws have been the emphasis of many of the initial and current developments to address revenge porn, but there are legal remedies that survivors may pursue to hold perpetrators civilly liable. 

For those trying to have their images removed, the first question, and possibly the most important, is whether you recorded the original images that have been posted without your consent. You have automatic copyright ownership of the images that you record, which means you have the exclusive right to copy, distribute, and/or display those images. If a website is serving as a host for images to which you own the copyright, you can demand that they respect your exclusive rights and remove the photo or video.  

The way to do this is by sending the website a letter, sometimes called a “takedown notice.” This notice, described under the Digital Millennium Copyright Act (the “DMCA”), informs the site that they are infringing the copyrighted material that you own. The DMCA gives website operators immunity for certain kinds of copyright infringement, unless they are informed of that infringement. Drafting the required notice need not be complicated or done by an attorney. You can find an example of a letter that meets the statutory requirements and that was used successfully here, and a website that will generate the notice for you here.

The takedown notice is probably your best approach, although there is no guarantee that a website will comply with your request. You may sue a website that has infringed your copyrights, but only after you have registered your copyrighted material, which may be undesirable given its private nature.

If someone else recorded the images to which you object, you may find recourse—against the individual responsible for the posting and/or the website—in one or more common law claims under tort law. A tort is, broadly speaking, a wrongful act that is not a crime.  State law governs most torts, so the specific elements of a particular claim may vary somewhat according to your jurisdiction.  Nevertheless, tort claims like “invasion of privacy” or “intentional infliction of emotional distress” are available in most states.  These and other tort claims require that you show proof of harm, whether emotional, financial, or otherwise.  In addition to the opportunity to recover monetary damages for your injuries, a civil suit allows you to seek an injunction, which is a legal tool that may be used to have the images taken down during the pendency of the suit and, if the suit is successful, permanently.

Litigation, aside from its inherent burdens, may actually bring more exposure to what you intend to keep private.  And you should know that some sites have retaliated against lawsuits by reposting the photos or videos on other sites.  It is an infuriating truth, but that possibility remains until we have clear and strict laws across the nation that hold service providers accountable for their role in online harassment. Until then, consider supporting organizations and individuals advocating just that. 

 

Charles F. Coleman Jr. is a former Kings County (Brooklyn), NY prosecutor and presently functions as a federal trial attorney specializing in civil rights and employment discrimination. Follow him on Twitter @CFColemanJr.

George C. Gardner III is a graduate of the Howard University School of Law and has practiced in government, nonprofit, and private sector settings. His experience includes constitutional civil rights law, commercial litigation, and transactional matters in the small business context.  He is licensed in the State of New York where he has recently transitioned into solo and freelance practice. Follow him on Twitter: @ggiii.

Nothing in this column should be construed as legal advice and is offered as information only. Readers are advised to consult an attorney with knowledge of the specific state laws within their local jurisdictions.