How to Fight Revenge Porn

For those whose privately shared photos have made their way to the web, an argument of implied confidentiality may be a good bet.

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Titian/Rebecca J. Rosen

Victims of non-consensual pornography, sometimes called "revenge porn," often receive little help from the law. Many who to try to fight the malicious and unconsented sharing of their explicit photos or videos cannot overcome the numerous hurdles to vindication. Plaintiffs like Holly Jacobs, who, according to her lawyer, is the first Floridian to sue an ex for their alleged distribution of non-consensual pornography, are told that offending websites receive broad immunity, that it's hard to identify the individual wrongdoers, and that once your explicit photo is shared with others, it is no longer "private."

This narrative is common but incomplete. Many players in these disputes have discounted the fact that non-consensual pornography is often, at base, a brazen and legally actionable breach of confidence. This underestimation is unfortunate because confidentiality can offer a viable cause of action for victims as well as a better way to talk about an intimate partner's duty of protection.

The most common civil remedies for non-consensual pornography are ineffective or ill-fitting. Even for those who have suffered greatly, the financial and emotional cost of a lawsuit is often too much to justify fighting back. The Streisand Effect discourages many would-be plaintiffs from filing a lawsuit out of fear of bringing even more unwanted attention to them. For those willing to bear the cost of enforcing their rights, successful claims are still extremely elusive.

For example, Holly Jacobs brought two causes of action based upon theories of public disclosure of private facts and the intentional infliction of emotional distress. These claims are notoriously difficult to prove. Many courts don't consider photos that have been shared with others to be private. The First Amendment has also significantly limited these remedies because they punish people for their expression. Copyright law has been somewhat effective in the removal of unconsented media (remember that YouTube video you can't access anymore?). However, copyright is at best a kludge available only to those who own the intellectual property rights to a photo or video, usually limited to media like "selfies."

There is no easy answer to this problem. Meaningful resolution of it will likely require a number of different incremental changes: new legislation, modified common law causes of action, education and, ultimately, changes in social norms. Some organizations, including Without My Consent, have already started by educating victims, attorneys, and the public. Statutes to criminalize non-consensual pornography are being considered at the state level. Many of these solutions are promising, but most solutions with any hope of being successful will take time.

But one legal argument has somehow failed to make a major appearance in revenge-porn cases: confidentiality. Broadly speaking, to confide is "to give to the care or protection of another," and it is often the defining trait of explicit media shared between romantic partners. Simply put, explicit images and videos are unlikely to be created or shared with an intimate without some expectation or implication of confidence. This reality has been acknowledged but underutilized in the dominant narrative on non-consensual pornography. In contrast to new rights that would be created by proposed "anti-revenge porn" laws, confidentiality is already a well-established legal concept. It is older than all of the privacy torts and statutes in America.

Nevertheless, the concept has languished in law and our conversations about social relationships. Arguably, there are several reasons for this. Confidentiality agreements are socially awkward and provide for limited damages. Traditionally confidential relationships are rare, usually being limited to professional relationships like those between doctors and patients and attorneys and clients. Perhaps most significantly, confidentiality law doesn't directly restrict the most injurious actor in the debate -- websites. While romantic partners who receive explicit materials might be prohibited from further disclosure, websites and other third-party recipients are not bound by the same rules because they presumably have no relationship with the person depicted in the media.

Presented by

Woodrow Hartzog is an assistant professor at Samford University’s Cumberland School of Law and affiliate scholar at the Center for Internet and Society at Stanford Law School. 

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