A Picture Is Worth A Thousand Words: The Legal Implications of Revenge Porn

BY Samantha H. Scheller

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Introduction

When Holly Jacobs first met her high school sweetheart, everything seemed perfect. She dated Ryan Seay throughout high school, and then on and off for a few years following graduation. [1] Yet when Jacobs broke up with Seay in 2009, her life changed forever. After the breakup, Jacobs claims Seay lashed out at her by posting sexually explicit pictures and videos of her online—alongside her full name, email, and where she worked.[2] Jacobs, who was working towards a doctorate at the time, had difficultly handling the negative backlash, calling damage control a “full time job.” [3]

Jacobs fought to escape the reputational and professional damage that followed her now-explicit online identity. She legally changed her name, left numerous jobs, and deactivated her social media and email accounts. [4] In a twist to Jacobs’ story, Seay responded by claiming that Jacobs posted the pornographic pictures herself in an attempt to ruin his life. [5] Whatever the truth, Jacobs, now Dr. Jacobs, aims to criminalize this phenomenon known as “revenge porn” in the United States and uses her website, EndRevengePorn.com, as a platform from which to spread her message. [6]

Dr. Jacobs’ situation unfortunately may be typical of victims of revenge porn. When private, sexually explicit content is shared on the Internet, the subjects of the photos and videos can be fired from their jobs and expelled from their schools. [7] Many are harassed online and in person, receiving sexual propositions from strangers because of their perceived promiscuity. [8]

Throughout the country, revenge porn has had very real and damaging effects on individuals whose sexually explicit photographs and videos have been involuntarily circulated on the Internet. [9] In response, victims may change their names and uproot their lives to escape reputational damage. [10] Many victims of revenge porn may suffer mental and emotional trauma and incur sometimes-irreparable harm to their reputations. [11] At times, even those who speak out about revenge porn are targeted. [12] The ease of communication on the Internet allows revenge porn victims to be followed from school to school and job to job, haunted by a fleeting moment memorialized in the digital realm. [13]

Victims find little shelter under current United States law. [14] The First Amendment of the United States Constitution generally protects pornography unless the material is deemed obscene. [15] But, because revenge porn features unwilling and often unknowing individuals, and because it is often posted alongside identifying information—including the subject’s name, age, and address—the implications for privacy law are obvious. Recent scholarship has considered whether the First Amendment protects revenge porn; [16] indeed, revenge porn is the latest arena where freedom of speech and invasion of privacy conflict.

Legislative attempts to define revenge porn by statute would face significant challenges. First, state legislation would be ineffective on a large scale because of the Internet’s highly accessible nature. [17] Second, legislation prohibiting revenge porn or limiting its scope threatens to violate the First Amendment. [18] Third, detailed legislation runs a serious risk of becoming obsolete in a short period of time as the revenge porn genre continues to evolve and as technology advances. [19] As technology progresses, novel forms of speech may arise and legislation designed for a current trend may set a bad precedent for another area of unprotected speech in the future. [20] Finally, legislators may attempt to err on the side of being overly inclusive in drafting revenge porn legislation, lest they fail to foresee some new version of revenge porn that may arise out of technological developments. However, overinclusion threatens to harm innovation, and may chill speech. A federal law banning revenge porn would have to account for these challenges.

Furthermore, although revenge porn causes reputational and emotional harm to the individual, the Internet largely has been considered part of the public domain and, therefore, free from overwhelming governmental interference. [21] Tort claims such as publication of private facts, publication of private works, intentional infliction of emotional distress, and negligent infliction of emotional distress may grant some redress to victims. [22] However, redress can be limited by issues such as an individual’s fear of the publicity that comes with a lawsuit, a lack of financial resources to hire and retain legal counsel, or an attorney’s unwillingness to sue an unknown content poster due to lack of financial certainty that such a suit would be worth that attorney’s time.[23]

In this context, this Comment proposes that private ordering may provide the best solution to the problems associated with revenge porn. Private ordering occurs when nongovernmental agencies agree to voluntary arrangements. [24] A number of nonlegal remedies have arisen, including changes to search engines and payment blocking, organized attacks by hacker groups, and doxxing. [25] These nonlegal solutions avoid legal issues of overbreadth and unconstitutionality while providing revenge porn victims with remedies to their problems. Rather than governmental legislation, a free-market approach [26] might help to run many of the current revenge porn sites out of business. [27] This Comment argues that as new trends develop, revenge porn will be overtaken by other trends, thereby making revenge porn obsolete. [28] This solution would permit revenge porn victims to receive the relief they need without requiring First Amendment sacrifices.

Part I of this Comment examines the history of revenge porn, detailing how the modern revenge porn phenomenon began and how the genre has been perpetuated by so-called copycat websites. Part II considers what protections current law provides revenge porn website owners and anonymous posters, including protections under the First Amendment and section 230 of the Communications Decency Act of 1996. Part III analyzes potential legal claims that could be brought against revenge porn website owners and revenge porn posters, discusses the viability of these claims, and concludes that these legal claims will ultimately be ineffective to combat the revenge porn genre. Finally, Part IV discusses the possible reforms available as long-term solutions to remedy this current trend and considers how private ordering may provide the best solution to those haunted by revenge porn.

I. The History and Development of Revenge Porn

Revenge porn is hardly a new phenomenon. Rather, the idea of using sexually explicit content to blackmail another has probably been around since the invention of the camera. [29] Even Marilyn Monroe was a victim of an early form of revenge porn. [30] In 1949, Marilyn Monroe faced financial hardship and agreed to pose nude for photographer Tom Kelly for fifty dollars. [31] Three years later, as Monroe’s career began to take off, the nude images surfaced and threatened to destroy her budding career. [32] Instead of turning to a legal remedy, against the advice of her producers, Monroe admitted that the photographs were of her, and gained sympathy from the public, who understood that Monroe had only posed for the photos during a time of dire financial need. [33] Monroe’s fame allowed her to handle the nude photos in a way not practicable for a non-celebrity—precisely the kind of person who is typically the victim of modern revenge porn. [34]

Modern victims of revenge porn face a different scenario than Monroe. More recently, a number of female celebrities’ online accounts were hacked, and the hacker posted their nude photos online to a forum on the website 4chan.com. [35] The FBI stepped in to address the issue, [36] and Google removed the photos from its search engine. [37] As the celebrity-hacking incident exhibits, the Internet presents an easily accessible platform on which sexually explicit content can be posted and accessed around the world. [38] What was once a localized problem has expanded into a national and global issue, as web access gives private content universal reach in a matter of seconds. [39]

A. Revenge Porn Defined

This Comment defines revenge porn as the online publication of sexually explicit photographs or videos posted without the consent or knowledge of the subject of the content. [40] Some scholars have suggested rephrasing the term as “involuntary porn” [41] or “nonconsensual pornography” [42] to emphasize that subjects of the pornographic photos and videos have not consented to the publication of their most intimate moments. [43]

The sexually explicit photos or videos were likely originally taken by the victim in the privacy of her or his own home and then shared with a significant other. After a breakup, a disgruntled ex-lover might then share that content online in an effort to seek revenge against his or her ex-partner as a form of punishment. [44] Modern revenge porn occurs when content intended for one person’s private enjoyment is shared with an unintended audience on public websites specifically dedicated to hosting sexually explicit content and commentary. This Comment addresses revenge porn that is specifically posted on websites dedicated to revenge porn, although in reality revenge porn can be spread through other mediums. [45]

B.  The Modern Revenge Porn Phenomenon

The modern revenge porn genre has its roots in amateur Internet pornography, which began to gain attention in 2000 when Italian researcher Sergio Messina noticed a trend among individuals sharing “self-produced erotica” in the form of photos and videos in global discussion groups. [46] Messina deemed the trend “realcore pornography” [47] to distinguish it from “hardcore pornography,” which often involves explicit sexual acts conducted by paid actors rather than individuals’ real, unpaid sexual exploits. [48] Eight years later, in 2008, the website XTube.com, an aggregator of pornographic videos, began receiving more hits to the website when a number of revenge porn videos were submitted to the site; XTube.com subsequently began receiving two to three complaints a week about the content. [49]

Perhaps the most well-known revenge porn website was IsAnyoneUp.com. [50] The site, boasting numerous anonymous submissions of mostly non-celebrities, was started in 2010 by Hunter Moore. [51] The site quickly garnered momentum as more and more posters submitted photos and videos. Within thirteen months, according to Moore, it had over 300,000 unique viewers per day. [52] As the site gained popularity, Moore sifted through hundreds of third-party submissions in an attempt to verify the ages of those depicted in the content by performing Facebook and Google searches. [53] The website’s posts were often side-by-side with Moore’s own comments on the content. [54]

Moore agreed to many television and radio interviews in which he defended his website. [55] A number of Moore’s critics argued that revenge porn affects women more often than it affects men; one commentator synthesized the gender disparity in the following comment:

[IsAnyoneUp.com is] particularly harmful because it exploits our culture’s double-standard, hurting women much more than it hurts men, giving angry, psychotic, and/or abusive men opportunities to hurt women. Moore says that he is not hurting people, that they hurt themselves. He may not be doing the hurting, but he has created a forum for men to maximize the hurt that they can inflict upon their exes, amplifying the damage that they could do on their own (by, say, posting it on their own FB page, or emailing it to everyone in their email list). By allowing them to do it anonymously, its [sic] a space whose sole function is to broadcast damaging expressions of hate directed at specific individuals. [56]

Inevitably, the subjects of the photographs or videos published on Moore’s website learned of their online presence [57] and sent scores of Digital Millennium Copyright Act (“DMCA”) [58] takedown notices to Moore. [59]

Charlotte Laws sent Moore numerous takedown notices in 2013. [60] Laws was first exposed to the world of revenge porn when nude photos of her daughter appeared on Moore’s site. [61] Moore refused to comply with the takedown notices. [62] Laws contends that she emailed Moore to ask him to remove the photo of her daughter in accordance with the DMCA. [63] When Moore refused, Laws contacted local law enforcement, then the FBI. [64] Eventually, because of the attention she was bringing to this issue, Laws herself purportedly became a target, and noticed at least one hacker in an unmarked white car parked outside of her home, attempting to access her digital information. [65] Laws received help from the group Anonymous, an international group of hackers, who subsequently crashed Moore’s servers in an effort to hold Moore “accountable for his actions.” [66]

Moore was arrested in January of 2014 on charges of hacking email accounts, stealing nude photographs, and posting those images online under the Computer Fraud and Abuse Act, a federal computer hacking law. [67] In an earlier Grand Jury indictment filed in the United States District Court for the Central District of California in October of 2013, the government alleged that Moore hired co-defendant Charles Evens to hack into revenge porn victims’ computers and that Moore “would send payments to defendant Evens using Paypal or directly from his bank account in exchange for the nude pictures . . . and would post the victims’ nude pictures on his website, IsAnyoneUp.com, without the victim’s authorization.” [68] In a press release, the United States Attorney’s Office for the Central District of California stated that if Moore was convicted under the charges, he could “face up to five years in federal prison.” [69] Moore was released to his parents’ custody on bail of $100,000 while he awaited trial, originally set to begin in September of 2014. [70] In a karmic turn for the self-crowned “King of Revenge Porn,” Moore’s release was under the condition that he “stay off the [I]nternet.” [71]

Although the founder of modern revenge porn may no longer be engaging in that conduct, some argue that Moore’s arrest only leaves room for the next “most hated man on the [I]nternet” to take his place. [72] Moore’s website has since been bought. However, in the time since IsAnyoneUp.com went under, a number of copycat sites have followed in Moore’s digital footsteps, perpetuating the revenge porn genre. [73] One of these websites is MyEx.com, [74] whose tagline is: “Get Revenge.” [75] MyEx.com allows anonymous posters to submit photos of their exes along with information such as their names, ages, locations, and alleged sexual proclivities. For instance, one poster’s submission is entitled “She likes money.” [76] The anonymous poster uploaded ten photos, nine of which are sexually explicit, and left the following comment: “Anonymous 7291 says: Well shell [sic] have a baby by you and then find another one to have a baby with.” [77] MyEx.com is just one of many websites that allow anonymous posters to submit sexually explicit content along with identifying information about the subject. [78]

Websites like MyEx.com may have learned from Moore’s mistakes. Rather than hiring staff to filter out submissions of child pornography, MyEx.com simply presents a forum for anonymous posters to upload content and write commentary. MyEx.com does not contain any commentary on the submissions by the website owners, unlike the commentary that Moore posted on IsAnyoneUp.com. [79] Further, MyEx.com has its own “FAQ” section answering commonly asked questions such as, “How do I have a post of me removed?” and “How do I find out who posted these pictures?” [80]

Most importantly, the revenge porn website ostensibly allows individuals to easily remove their photos by clicking a link entitled “Remove Name.” [81] MyEx.com has altered its removal policy over the last year. The “Remove Name” link once prompted revenge porn victims to pay $499. [82] In return, the site promised to delete their record from the site “within 24 to 72 hours, [r]emove MyEx.com search results from Google within 72 hours, [and] [r]emove MyEx.com search results from Yahoo and Bing usually within 7 days.” [83] Recently, the site has revised its removal policy to allow individuals to submit removal requests for a number of reasons. [84] For example, one can submit a DMCA takedown request, a minor removal request, or a general removal request. [85]

Victims of revenge porn can expect little recourse from the websites themselves. MyEx.com’s frequently asked questions section might seem to place the website in a more responsible light than Moore’s IsAnyoneUp.com model. However, the site takes a hands-off approach to tracking posters: “We do not keep any records of the people who post. No emails, IP addresses, or info.” {{86}][[86]] See supra note 80. [[86]]

If revenge porn victims fail to get the content removed from a website like MyEx.com, they may hope to retain legal counsel. As discussed below, however, constitutional and legislative protections granted to revenge porn websites and revenge porn posters may hinder victims’ efforts to seek recourse.

II. Constitutional and Legislative Protections for Revenge Porn

A number of Constitutional Amendments and federal laws currently help protect revenge porn from legal regulation. Among these are the First Amendment and section 230 of the Communications Decency Act. This Part of this Comment analyzes both of these constitutional and legislative devices and concludes that under current federal law, revenge porn is a protected genre.

A. The First Amendment

The First Amendment of the United States Constitution protects a fundamental right of freedom of speech. [87] In just forty-five words, the First Amendment outlines an essential right of the American democracy: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” [88]

The Supreme Court has developed protective devices to ensure that Americans have significant safeguards. There are three major theories as to why freedom of speech is so essential to our culture. The first is self-fulfillment, which is the idea that we realize ourselves by our expression and that expression is unique in terms of human fulfillment. [89] The second is truth and the marketplace of ideas, or the belief that if we let everything into the marketplace the best idea will come to the fore. [90] The third is self-governance, or the idea that in order to contribute to an active public discourse and best govern ourselves we need all the information about a politician or political issue. [91] Our society values minority ideas and contrarian beliefs because permitting this speech allows us to test our ideas against others’ and determine their worth. An expansive marketplace is also essential to promote tolerance of varying beliefs, especially political and religious beliefs. [92] Many individuals disagree about the level of protection that the First Amendment should grant to Internet pornography. Some argue that pornography can be construed as a form of speech, while others consider it a violation of privacy and a form of female objectification. [93]

There are a few ways in which courts analyze First Amendment issues. The first is a categorical approach, which looks at the type of speech the government is attempting to regulate and determines whether that speech falls into a category of unprotected speech. [94] The second is a balancing approach, in which courts weigh competing interests against one another. [95] Critics argue that this second approach is troublesome because it is inherently subjective, and requires decisions to be made on a case-by-case basis, resulting in sometimes-uneven decisions and, at times, possibly conflicting First Amendment doctrine. {{96}][[96]] See, e.g., Kathleen M. Sullivan, The Supreme Court, 1991 Term—Foreword: The Justices of Rules and Standards, 106 Harv. L. Rev. 22, 58 (1992) (arguing that balancing “tends to collapse decisionmaking back into the direct application of the background principle or policy to a fact situation”); see also Antonin Scalia, The Rule of Law As a Law of Rules, 56 U. Chi. L. Rev. 1175, 1179 (1989) (arguing that a balancing method permits judges to decide cases based on their political preferences). [[96]] A third approach examines the forum in which the speech occurred to determine what level of freedom of speech or expression protection should be granted to the speaker in that particular forum. [97] This Comment addresses each category in turn.

  1. The Categorical Approach: Obscene Speech and Defamation

A few categories of speech are not granted protection under the First Amendment. [98] Obscene speech and defamatory speech are among the unprotected areas of speech. [99] Elements of the revenge porn phenomenon may fall into both of these categories.

Obscenity does not receive First Amendment protection, as it is considered “utterly without redeeming social value,” [100] even when exhibited solely to adults. [101] However, adults do have a right to possess and enjoy obscenity in their homes. [102]

As Justice Potter Stewart famously remarked about obscenity, “I know it when I see it.” [103] That nebulous characterization has since been refined, and the Supreme Court has articulated a more concrete, three-part obscenity test to determine whether some material is obscene and therefore unprotected by the First Amendment. [104] The material in question must meet the following elements: (1) “whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest”; (2) “whether the work depicts and describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law”; and (3) “whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” [105]

Note that nudity alone is not enough to meet the contemporary community standards burden, [106] even if the nudity depicts an individual’s buttocks. [107] However, a number of state interests can justify banning the sale and display of obscene materials, even to consenting adults. [108] These state interests include maintaining the quality of life in the community [109] and reducing crime and uplifting the moral fabric of society, among others. [110]

Some scholars argue that revenge porn should be categorically banned like other unprotected areas of speech, such as obscenity. [111] This argument relies on historical precedent, as traditionally the First Amendment has not protected nude depictions of individuals. [112] Those that argue for the criminalization of nonconsensual pornography believe that it can be outlawed without interfering with First Amendment protections. [113] It is unlikely that revenge porn will be considered obscene for the purposes of labeling it an unprotected category of speech under the First Amendment because, as discussed below, the Supreme Court is reticent to expand on the limited number of exceptions of types of speech that are unprotected by the First Amendment.

The Supreme Court’s stance on obscenity was reaffirmed in a 2010 case, United States v. Stevens, [114] which concerned obscene speech in the form of “animal crush” fetish videos. [115] The Court held that 18 U.S.C. § 48, a federal statute that criminalized the portrayal of certain depictions of animal cruelty, was substantially overbroad and invalid under the First Amendment. [116] In the majority opinion, Chief Justice Roberts noted that the “First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits.” [117]

An argument could be made that revenge porn should be considered obscene, regardless of the Court’s ruling in Stevens, as revenge porn depicts sexual activity without the consent of the individual or individuals involved, which arguably appeals to the prurient interest. Further, revenge porn may be considered offensive sexual conduct given the noted lack of consent and potentially secretive nature of the exposure of the photographs and videos. The lack of consent may also contribute to an argument that there is no artistic or scientific value to revenge porn.

Despite these arguments, the Supreme Court’s ruling in Stevens shows that the Court is unwilling to expand upon the obscene category of speech, even in situations as extreme as those involving animal crush videos. Therefore, it is unlikely that the Court would deem revenge porn a categorical violation of the First Amendment.

Defamation is yet another unprotected category of speech under the First Amendment. [118] This claim requires a plaintiff to prove that a defendant published a defamatory statement concerning the plaintiff and that the statement caused the plaintiff to suffer actual damages. [119] Publication does not require anything more than the defendant telling the defamatory statement to at least one person other than the plaintiff. [120] States can determine their own standards for defamatory falsehoods about private individuals on matters of public concern (that is, issues in which the public has a legitimate interest) and the private plaintiff may recover damages if the statement was false and negligent. [121] The defamation test is altered if a person is a public or political figure, [122] in that a public or political figure will bear the burden of typically showing by clear and convincing evidence that a false statement was made about them with either actual malice or reckless disregard. [123] It is important to distinguish between statements made as facts and those made as opinions. Factually false statements—in other words, lies—cannot be prohibited by statute [124]; moreover, statements of opinion are also protected speech under the First Amendment. [125] Further, actual malice requires that the defendant have subjective awareness of probable falsity. [126] This relatively high barrier prevents a chilling effect on speech and allows more speech into the marketplace. [127]

A defamation claim may prove inapt as a remedy for revenge porn victims for a number of reasons. First, because reputation is not a tangible quality, monetary damages are often insufficient—and may not ever be sufficient in a revenge porn victim’s case—to repair a reputation damaged by defamation. [128] As such, broad laws protecting defamation necessarily prevent some qualified individuals from entering into the political realm for fear of the inevitable intrusion upon their private lives by the American media and the lack of repercussions for defamatory statements made against those individuals. [129]

Further, defamation is a more difficult claim to substantiate if it is based on the pornographic photo or video that the subject presumably willingly took. Unless the photographs or videos on the revenge porn site have been digitally altered, they are presumably true. In other words, unless the sexually explicit content on the site is false, that content will not be considered defamatory. [130] Often, the revenge porn truly depicts what the individual looks like, as it was taken by the individual herself or himself. As such, it is unlikely that a revenge porn victim would be able to succeed in a defamation claim.

  1. The Balancing Approach: Profanity and Pornography

Anonymous postings on revenge porn sites often include profane language that is protected under the First Amendment. The Court has held that profanity enjoys First Amendment protection except in limited situations, such as in broadcast media and in schools. [131] In these situations, courts will often weigh the competing interests in a balancing test. [132] Despite this balancing test, a regulation targeting profanity is only valid if the profanity contains fighting words or the regulation is necessary to protect a captive audience or minors. [133]

As for pornography, the First Amendment may protect the “porn” of revenge porn unless the depiction is obscene which, as discussed, is a difficult burden to meet. There are a few limited circumstances in which courts have permitted the government to ban or restrict access to pornographic content. For instance, pornography can be subject to government control in an attempt to limit minors’ access to it, as the government has a substantially overriding interest in protecting minors. [134] The government may also use its zoning powers to proscribe places where pornographic businesses operate by targeting the secondary effects of those businesses. [135] Many of those who argue that pornography should be prohibited argue that it is a form of sexual discrimination against women and that it causes harmful attitudes and actions towards women in society. [136]

An argument might be made that revenge porn is distinct from traditional pornography because, although both revenge porn and traditional pornography involve the depiction of sexual acts, revenge porn involves the nonconsensual exposure of those sexual acts. That is, although the taking of pornographic photographs or videos is presumably initially consensual, [137] the subject has not consented to the sharing of those photographs or videos. [138] Therefore, it may be possible to argue that revenge porn is not a subset of pornography, but rather a departure.

However, despite that argument, this Comment argues that because of similarities in the actual content of revenge porn and pornography, courts likely will view revenge porn as an extension of pornography. By this extension, therefore, the First Amendment would seem to protect revenge porn posters. If this argument is successful, revenge porn may be slightly easier to categorize than pornography because of the way in which it is posted—namely, the content is submitted by typically anonymous users who are sharing sexually explicit content of unknowing and unwilling subjects.

  1. The Public Forum Approach: The Internet and Government Regulation of the Internet

A public forum is a place that permits expressive activity either by tradition or by designation. [139] If the Internet is considered a public forum, expressive activity that occurs on the Internet will be given more protection under the First Amendment. Although it may be difficult to argue that the Internet is a traditional public forum as it has not “immemorially been held in trust for the use of the public,” [140] one might argue that the Internet has “been used for purposes of assembly, thoughts between citizens, and discussing public questions.” [141] In analyzing whether the Internet may qualify as a public forum, it is important to note from the outset that the Internet is not government property. [142] As such, it will not fall under the traditional public forum doctrine; however, the government has taken significant steps towards regulating portions of the Internet. [143] It must also be noted that individual servers on the Internet may be exempt from a public forum qualification, as large portions of the Internet are dedicated to commercial speech, which has traditionally been granted less protection than other forms of speech [144] under the First Amendment. [145] When considering the Internet’s multi-dimensional functionality, and the large number of individuals who are able to express their opinions on various outlets on the Internet, there is a strong argument that it functions as a public forum, despite its nontraditional form.

If the Internet is considered a public forum, the government may not be permitted to regulate Internet speech on the basis of content, depending upon the particular category of expression. [146] As discussed below, in considering whether the government may be permitted to regulate revenge porn on the Internet, public forum considerations take into account the time, place, and manner of the regulation.

Some background may be helpful when considering government regulation of revenge porn on the Internet. If a government regulation is not aimed directly at speech itself but rather affects it indirectly, it will be considered a time, place, or manner restriction. [147] If a regulation of speech is content neutral, the following three-part test is applied: (1) the regulation must serve a significant governmental interest; (2) the regulation must be narrowly tailored to achieve that objective; and (3) the regulation must leave open adequate alternative channels for communication. [148]

Regulation of communications on the Internet receives the relatively strict scrutiny given to the regulation of printed material. [149] Unlike the broadcast spectrum, which is a scarce resource (and for which the Court has allowed the government to engage in a more extensive time, place, and manner regulation than for print media), the Internet is hardly a scarce resource. Therefore, any time, place, or manner regulation on the Internet must be closely linked to the achievement of an important government interest. For example, in Reno v. ACLU, [150] the Court held that allowing minors access to “offensive” non-obscene material could not be outlawed if the effect would be to seriously restrict the rights of adults to such materials. [151]

Many argue that the government should not be permitted to regulate the Internet, as a digital landscape is a different form of property than traditional government-created boundaries in the physical world. [152] Cyberspace is transnational and any rules created would necessarily be culture-specific. That is to say that many countries have different cultural norms, and Internet regulation would be difficult to impose on countries with differing perspectives. For example, the community standard element of the Miller obscenity test [153] would be difficult to apply in an Internet forum, as community standards necessarily vary depending upon where a community is located and what societal values persist in that area. Further, local standards may prove more or less protective than national standards. It would therefore be difficult for federal legislation to provide a one-size-fits-all solution for revenge porn sites.

There have been a number of cases concerning Internet pornography and its First Amendment value. For instance, indecency standards targeting obscene speech on the Internet were struck down in Reno v. ACLU. [154] Similarly, the Court struck down a section of the Child Online Protection Act (“COPA”) that fined those who communicated material “harmful to minors” on the Internet in Ashcroft v. ACLU. [155] Ashcroft v. Free Speech Coalition [156] held that the government may not, however, ban virtual child pornography. [157] As for anonymous speech on the Internet, although some question the value of speech without accountability, the Supreme Court has recognized a qualified right to speak anonymously with political literature. [158]

It is clear that the existing framework is inexact. The Supreme Court has yet to rule on whether the Internet should be considered a public forum, and it is unclear whether the Court will ever consider the issue directly. Internet regulations are a difficult area, as many legal inferences are pulled from speech made in an offline world. Because the Internet regulations in place are imprecise, this Comment argues in Part IV that nonlegal solutions are required to protect victims of revenge porn. [159] Protections provided to revenge porn website administrators and posters of revenge porn, including section 230 of the Communications Decency Act (“CDA”), [160] may obstruct victims’ efforts to have the sexually explicit content removed from the Internet.

B. Section 230 of the Communications Decency Act

Revenge porn website administrators may seek protection under section 230 of the Communications Decency Act. [161] section 230 states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” [162] In effect, it protects website owners from liability for content posted by third parties.

In analyzing whether a website is immune from liability under section 230, courts apply a three-pronged test: (1) the defendant must be a “provider or user” of an “interactive computer service”; (2) the cause of action asserted by the plaintiff must “treat” the defendant “as the publisher or speaker” of the harmful information at issue; and (3) the information must be “provided by another information content provider,” that is, the defendant must not be the “information content provider” of the harmful information at issue. [163] One of the earliest cases involving section 230 succinctly defines the protection granted, noting that section 230 “creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.” [164]

As a result of section 230, courts have been reluctant to find website operators liable for claims such as negligence [165] and defamation. [166] However, if the website owners themselves interact with content provided by users of the website, they may be held liable as information content providers. [167] For example, a 2008 case held the website Roommates.com liable in a housing discrimination suit because—despite the website’s claim for protection under section 230—the website required users to enter information regarding their gender, sexual orientation, and marital status. {{168}][[168]] Fair Hous. Council v. Roommates.com, L.L.C., 521 F.3d 1157, 1166 (9th Cir. 2008). [[168]] The court held that “[b]y requiring subscribers to provide the information as a condition of accessing its service, and by providing a limited set of pre-populated answers, Roommate becomes much more than a passive transmitter of information provided by others; it becomes the developer, at least in part, of that information.” [169]

Revenge porn website owners may be more than simply proxies through which users share revenge porn if they sift through content for child pornography, as Moore admitted to doing when he operated his website. [170] Such interaction with the content seems to place some doubt on whether Moore and others like him could use section 230 as a defense because by interacting with the content, they have inserted themselves into the process. However, it is unlikely that every revenge porn website would be liable because of the extensive nature of the protection granted under section 230. Likewise, as noted previously, copycat websites seem to have learned from Moore’s mistakes, [171] and, going forward, likely will not require anonymous posters to insert information about themselves before accepting a submission.

III. Causes of Action Against Revenge Porn Website Owners and Submitters

A number of legal claims potentially could be brought against owners of revenge porn websites and submitters of the pornographic content. These claims include publication of private facts, intentional infliction of emotional distress, and copyright infringement.

However, while these claims may provide protection in some instances, there are significant flaws with each legal claim that continue to leave victims vulnerable. Additionally, victims may not have the resources to hire a lawyer; the poster may not have assets to make it worth the lawyer’s time; and victims may fear bringing publicity to content they are attempting to get removed or be intimidated by the difficulties in getting one sexually explicit picture or video or set of pictures or videos taken down on numerous sites, as a poster may submit content on more than one website. [172]

A. Public Disclosure of Private Facts

Public disclosure of private facts protects the unreasonable disclosure of private facts of an embarrassing nature. [173] This claim requires a public disclosure of private facts that are highly offensive to a reasonable person (an objective standard) and that the subject matter must not be of legitimate public concern. [174] Although a right to privacy is not explicitly enumerated within the Constitution, courts have read a right to privacy into the Constitution. [175] Of the claims discussed in this Comment, public disclosure of private facts is perhaps the most likely to succeed in a suit in which the revenge porn victim sues the poster of the content at issue.

A revenge porn victim must show that the posting of sexually explicit content on a public revenge porn site is a public disclosure. The victim may argue that the posting will reach a sufficient number of individuals so that it is likely to reach the public, as revenge porn websites are not password-protected and are accessible to any individual with access to the Internet. Next, the victim must show that the private facts, photos, or videos were truthful, as they were photographs or videos of a subject in a sexually explicit context. The victim must argue that the sexually explicit content is not part of the public record, as the pornographic photograph or video most likely took place in the subject’s home or in another private setting. The victim must then show that the disclosure of the photograph or video without his or her knowledge or consent is highly offensive to a person of reasonable sensibilities, as a reasonable person would not publically post nude photographs of others without consent.

Lastly, in considering whether the revenge porn is of any legitimate public concern, it is essential to examine the newsworthiness and social value of the revenge porn material, the depth of the website’s intrusion into ostensibly private affairs, and the extent to which the poster or the website administrator voluntarily acceded to a position of public notoriety. [176] If, on the other hand, the public has a significant interest in the revenge porn, it may outweigh the revenge porn victim’s interests in succeeding under a claim of publication of private facts. The typical revenge porn victim is a private individual. As such, the victim’s nude photos and videos are unlikely to be considered newsworthy or a matter of legitimate public concern.

Despite the likelihood of success for a revenge porn victim under a claim of publication of private facts, this claim will only work if the victim already knows the identity of the anonymous poster. A victim will be unlikely to prevail on this claim against a site administrator because of the protections granted to the site by section 230 of the CDA. [177] Therefore, this cause of action does not provide adequate protection for a revenge porn victim.

B. Intrusion

A revenge porn victim may wish to bring an intrusion claim against a website administrator or an anonymous poster because of the intrusive nature of exposing sexually explicit content on the Internet. {{178}][[178]] One revenge porn victim successfully alleged a claim of intrusion against an ex-boyfriend who posted nude photos of the victim on Facebook. See Liamsithisack v. Bruce, Case No. 1-12-CV-233490 (Santa Clara Super. Ct. 2014). The jury in that case awarded the plaintiff $250,000 in damages. Id. [[178]] An intrusion cause of action requires three elements to be met: (1) the defendant intentionally intruded either physically or non-physically; (2) into the victim’s solitude and seclusion; and (3) the defendant’s intrusion is highly offensive to a reasonable person. [179]

Taking each element in turn, an argument could be made that a revenge porn poster or website administrator did intentionally intrude on a victim by exposing nude photographs or videos of that individual online, as nudity is a highly personal matter. It is important to note that the revenge porn website administrator or poster may not claim a defense under the First Amendment, as courts have roundly rejected any attempts to use the First Amendment as support for a license to trespass. [180] The intrusion would be a non-physical intrusion if the poster or website administrator was given the photos by the victim or through an anonymous posting. Conversely, the intrusion might be considered physical if the sexually explicit content was obtained by hacking into the victim’s computer or phone.

Although it may be a more difficult argument that the revenge porn poster or website administrator’s intrusion was into a place, conversation, or matter in which the victim had an actual, subjective expectation of seclusion or solitude, a revenge porn victim has several arguments which may support this element of an intrusion claim. For instance, nudity is a highly personal and typically private matter. Therefore, generally speaking, an individual may have an expectation that nude photos would be kept private. Although the poster or administrator may argue that by taking photographs, the victim was projecting his or her nudity into a more public setting (as digital photos are easily circulated), a victim may respond by pointing to the nature of how the photos were initially shared. In the most common case, a victim will send the sexually explicit content to a then-boyfriend or girlfriend through a text message or a private email. [181] The private way in which the content was shared—through a direct message, and not through any method of social media, for example—may aid the victim in her or his claim that the individual had an actual, subjective expectation of seclusion or solitude.

Lastly, this Comment considers whether a poster’s or website administrator’s intrusion was highly offensive to an objective, reasonable person with a reasonable expectation of privacy. The victim might argue that his or her expectation was objectively reasonable because in a typical relationship with a boyfriend or girlfriend, there are private matters that are understood to be personal and are not to be shared. In these cases, the victim has a strong argument that nude photos shared between the couple would be considered personal. It is likely, therefore, that a revenge porn victim could succeed in bringing a claim of intrusion against an individual who posted sexually explicit content depicting the victim to a revenge porn website.

C. Intentional Infliction of Emotional Distress

A revenge porn victim may claim that the revenge porn posting caused them to suffer intentionally inflicted emotional distress. A claim of intentional infliction of emotional distress (“IIED”) requires the victim to demonstrate that the defendant engaged in extreme and outrageous behavior that produced serious emotional consequences. [182] A claim for IIED requires (1) an intentional or reckless act that is (2) extreme and outrageous and (3) causes severe emotional distress. [183] Despite these requirements, if the act at issue is speech, and the speech still has some value, an IIED claim will fail. [184]

In order to establish recklessness, the plaintiff must prove that the defendant knew or should have known of the risk (because it was obvious) but failed to take precautions against it. [185] The act must be so outrageous as to go beyond all bounds of decency in a civilized society. [186] In order to be severe, the jury will have to conclude that the plaintiff suffered long-lasting emotional problems. [187] Such problems can include a victim’s fright, horror, grief, shame, humiliation, embarrassment, anger, worry, or nausea. [188]

An IIED claim may be a viable option for victims of revenge porn if the victim can identify the individual who posted the content to the site. However, there are several problems that a victim will face in bringing this claim. First, like a claim for publication of private facts, this tort claim may fall short if the victim is unaware of the anonymous poster’s identity. [189] Second, a poster may argue that posting of sexually explicit content online is not extreme and outrageous considering the number of pornographic sites on the Internet. Third, a poster may argue that if the victim took the photograph or video herself or himself, it was the victim—not the poster—who acted recklessly. Therefore, this claim may be insufficient in aiding revenge porn victims.

D. Copyright Infringement

Copyright law is a constitutionally guaranteed right [190] that aims to provide protection for authors as the creators of their original work so they may better protect their livelihoods and in turn be more likely to create products that will benefit public welfare. [191] According to the 1976 Copyright Act, “[c]opyright in a work protected under this title vests initially in the author or authors of the work.” [192] Section 102(a)(5) of the 1976 Copyright Act grants copyright protection to “pictorial, graphic, and sculptural works.” [193] Further, section 101 defines “pictorial, graphic, and sculptural” works to include photographs, [194] which, without further clarification, would likely include those posted to revenge porn sites. Copyright protection exists the moment an original work is fixed in a tangible medium for more than a transitory duration. [195] In other words, copyright protection is given to the photographer or videographer the moment that the sexually explicit content is captured on film. [196] The photographer, not the subject of the pornographic content, retains the rights to that content. [197][[197]] Kaminesky, supra note 196. [197] This fact presents problems for revenge porn victims who allowed another to take the photograph or video.

Revenge porn sites, on the other hand, include many selfie photographs. [198] The selfie trend allows the subject of the photograph and the photographer to remain one and the same, and therefore, the subject may retain all copyright rights to the photograph or video in question. Thus, revenge porn victims who took the sexually explicit photograph or video themselves will have the copyright right to that content, despite sending it to other individuals who subsequently posted that content to a public site.

If a revenge porn victim finds a selfie or other content to which he or she owns the copyright on a revenge porn site (and he or she has not transferred copyright ownership to that site or to another), then the Digital Millennium Copyright Act (“DMCA”) permits that individual to send the website a takedown notice to have that content removed. [199] Congress passed the DMCA in 1998 to address technological innovations on the Internet and how the Internet affected copyright rights. [200] The DMCA provides for secondary liability on the Internet but limits liability for service providers if the service providers: (1) do not know or have reason to know of the infringing activity; (2) do not have control over customer posts; (3) have devised, publicized, and implemented a policy for terminating repeat infringing customers; and (4) do not undercut technological protection measures (such as encryption). [201]

Although service providers receive limited liability, website owners are required to comply with notice-and-take-down provisions when the notice-and-take-down complies substantially with statutory requirements. [202] For the takedown notices to be adequate and comply with the statute’s requirements, the notices must be very specific. The notices must be written, signed, identify the work being infringed, identify the infringing work, include the contact information of the complaining party, and include a statement that all information contained therein is accurate and that, under penalty of perjury, the complaining party is authorized to act on behalf of the right holder. [203]

Therefore, revenge porn victims could send DMCA takedown notices to revenge porn website operators, challenging their copyrighted material posted on the website if the subjects are the creators of the photography or video. [204] Although some scholars are calling for a total change in copyright law, [205] as the law currently stands, a copyright claim and DMCA takedown notice may only work in a limited number of situations. For instance, a revenge porn victim must first know that she or he can make a copyright claim and send a DMCA takedown notice if she or he owns the copyright to the photograph or video in question. Likewise, a revenge porn site would need to comply with a properly written and submitted takedown request. If Hunter Moore is any indication of the typical revenge porn website owner, these takedown requests might largely be ignored. [206] Copyright law therefore does not provide sufficient protection to revenge porn victims.

IV. Possible Reforms and Private Ordering

Revenge porn victims like Dr. Holly Jacobs are pushing for legislative reform in a number of ways. Such reform methods include petitions to criminalize revenge porn nationally [207] and globally, [208] and encouragement of victims to speak up and to join support groups. [209] This Comment suggests a number of ways revenge porn victims may find help when they find their sexually explicit content posted publically online. Specifically, this Comment argues that despite suggestions for changes to federal and state laws, the most effective resolutions for revenge porn victims are private-ordering solutions. [210]

A. Changes to Federal Law and State Legislative Action

One suggested reform includes changes to federal copyright law to make the subject of the photograph or video the owner of the rights rather than the photographer. [211] Many copyright scholars are critical of such a fundamental change, arguing that it would unnecessarily alter the way copyright law functions and improperly turn copyright law remedies upside down. [212] Such a change in copyright law might be messy and difficult to apply, as it would go against decades of precedent. It also threatens to clog the courts, as such a change would permit many more individuals access to a photograph or video’s copyright. Additionally, as a new law, it will likely provide the courts with little guidance in its interpretation.

A strong counterargument might be made that because the consequences of revenge porn are so far-reaching, it warrants an exception to section 230. Some suggest that section 230 should be amended to limit protection to websites who permit third parties to post revenge porn content on their sites. [213] After all, as discussed above, revenge porn has the capability to ruin revenge porn victims’ lives, [214] and if section 230 ever warranted an exception, there is a strong argument that revenge porn is it.

Despite these arguments, a criminal law amendment may remove much of section 230’s power. If an exception is granted into section 230 for revenge porn, in a few years’ time, another fad may arise [215] and legislatures will be urged to amend section 230 to add yet another exception. [216] Similar to the Supreme Court’s unwillingness to create additional categorical exceptions to the First Amendment, [217] Congress should be unwilling to draft exceptions to section 230, as they will weaken the protections the law provides to Internet servers and websites.

Some states, like California, have taken matters into their own hands and have passed legislation to combat revenge porn. [218] California passed revenge porn legislation, Senate Bill No. 255, [219] on October 1, 2013, that was then signed into law by Governor Jerry Brown. [220] The new law aids potential victims of revenge porn by making it a misdemeanor to post such graphic images or video “with the intent to cause serious emotional distress.” [221] Defendants who violate the law could land in jail for up for six months or be fined up to $1,000. [222]

This new California law has received criticism for its limited scope of protection. [223] Critics argue that because the law does not protect against the posting of selfies, and the majority of revenge porn photographs are selfies, a large number of individuals who submit revenge porn posts may remain protected. [224] Other critics believe that the law’s language is too vague to be an effective deterrent. [225] Further, some argue that the law, if challenged, may be struck down as unconstitutional. [226] The California revenge porn statute is a content-based restriction of speech because it distinguishes between “intimate” and “non-intimate” body parts. [227] As discussed in Part II.A.1, if a state is restricting a form of speech based on the speech’s content, that speech must fit within a category of unprotected speech. [228] There are a limited number of categories of unprotected speech that may apply in the context of revenge porn. As such, in defense of the law’s constitutionality, California would have to prove that revenge porn is considered obscene, defamatory, or perhaps that it may incite some to violence. As discussed, revenge porn is unlikely to be considered obscene or defamatory. [229] Moreover, it seems unlikely that revenge porn will incite violence, as the photographs were originally taken by the subject herself or himself.

B. Private-Ordering Solutions

As detailed above, federal and state legislation aim to punish posters or websites after the harmful content is published. But such legislation may be held unconstitutional if challenged in court. Instead of turning to legal remedies, private ordering may provide the best solution to eliminating revenge porn websites. There are a number of possible private-ordering remedies available, including host-site shutdowns, changing trends, changes to search engines, payment blocking for removal sites, and organized attacks and doxxing by hacker groups.

  1. Host-Site Shutdowns and Changing Trends

A host-site shutdown may provide a solution for revenge porn victims. Host sites that act as servers for the revenge porn sites may consider shutting down specific revenge porn sites. [230]

For instance, in February of 2013, a revenge porn site Texxxan.com was shut down by its host site. [231] The pornographic website was hosted by GoDaddy.com, who cited copyright infringement as the reason for the removal of the site. [232] The removal came after a threatened class-action lawsuit brought by a number of women whose photos and videos had been posted on the website, and wrongful appropriation of names and likenesses, among other claims. [233] The plaintiffs sued the website for invasion of privacy under Texas law, as well as public disclosure of private facts. [234] In April 2013, a federal court issued an injunction prohibiting Texxxan.com’s administrators from both relaunching the website and from sharing the site’s content with other websites. [235] Although Texxxan.com is just one of many revenge porn websites, it is possible that pressure from the community or from a class-action lawsuit could prompt other host sites to shut down the domain names for other sites as well.

Shifting trends may also aid in the elimination of revenge porn. As the generation of Internet users who frequent revenge porn sites age and mature, social norms and standards on the Internet will necessarily evolve with them. It would not be the first time an online trend came and went in a period of a few years.

For example, in 2008, the online gossip website JuicyCampus.com was at the height of its popularity. [236] The site invited students from more than five hundred colleges and universities in the United States to post anonymous comments on forums with dedicated subjects—such as “Sorority Rankings” or “Hottest Black Guys.” [237] Like modern revenge porn sites, the anonymous commentary often included personal identifying information about the individual being discussed in the comment such as full name, dorm hall, and class schedule. Many observers were concerned about JuicyCampus.com and called for legislation to remove the site and other sites like it. [238] But, less than a year later, changing trends proved that JuicyCampus.com was merely a popular fad that was coming to an end. [239] By February 2009, the website had permanently shut down, citing a lack of sufficient financial support. [240]

Lack of financing was the publicly cited cause for Juicy Campus’ shut down, but it is also possible that changing trends contributed to decreased traffic to the website. As the site became less popular, fewer visitors accessed the site, and this lack of interest eventually led to the demise of the site.

A similar fate may await the revenge porn genre—it may be just a passing trend. After all, Generation Y (1977-1994) is the first generation that is growing up in a time where a phenomenon like revenge porn has been possible. [241] The next generation of Internet users may learn from previous mistakes; revenge porn could be a distant memory in a few years’ time. There are two important counterarguments to this claim: (1) as discussed, the concept of blackmailing individuals with sexually explicit content has been around since the days of Marilyn Monroe; [242] and (2) the permanent nature of material posted to the Internet will necessarily prevent revenge porn from fading into the distant memory of the collective conscious.

While at first glance these counterarguments may seem like insurmountable obstacles for revenge porn victims, these two factors may aid in a shift in public policy. For instance, during the September 2014 celebrity nude photo hacking incident, [243] celebrities and average Internet users alike voiced their concern with the misogynistic undertones of the hack. [244] Public outrage prompted Google to take action and delete thousands of nude photos. [245]As the celebrity hacking incident illustrates, much of the outcry related to the privacy invasion committed by the hackers, rather than the celebrities’ behavior. If cultural norms shift such that the public develops a “no tolerance” policy for the harassment of women and men through sexually explicit blackmailing, it is possible that the revenge porn phenomenon will dissipate on its own, without aid from the legislature.

  1. Search Engines Algorithms and Payment Blocking

The issue Dr. Jacobs faced when she became a victim of revenge porn was that no matter where she went, the digital trace of revenge porn followed her. [246] However, a simple change in a popular search engine’s algorithm or input formula [247] could eliminate the issue of revenge porn attached to an individual’s name. Such a change would remove revenge porn from the top search results, effectively burying the content in the black hole of the Internet.

For instance, mug shot websites often plague individuals who have been arrested, preventing them from obtaining new jobs despite having served their time and having their records expunged. [248] Mug shot websites capitalized on freely available mug shots from police departments around the country, [249] obtaining the photographs through Freedom of Information Act (“FOIA”) requests. [250] Mug shot websites would then post the photographs under the guise of arming the community with knowledge and charge those who wished to have their mug shot taken down. [251] A journalist for The New York Times investigated these sites and contacted the payment companies (Visa and PayPal) who processed payments for the removal of these photographs. [252] Shortly after The New York Times published this article, Google changed its search bar algorithm to make it more difficult to link an individual to his mug shot posted to these websites. [253]

This solution may be translatable to revenge porn website images or videos linked to an individual’s name. Dr. Jacobs had trouble finding a job, as she was plagued by revenge porn content online. [254] If major search engines like Google and Bing alter their search engine algorithms, the sexually explicit content that haunted Dr. Jacobs and others like her might become a non-issue. Burying search results can be an effective measure of hiding unwanted content. [255]

As for the payment-blocking route, as noted previously, sites like MyEx.com once included removal links beside each anonymous post; these links originally lead to another website, Reputation.com, which offered to remove the content for $499. [256] Although it is unclear exactly why that revenge porn site altered its removal system, it is possible that payment companies for the revenge porn removal may choose to terminate all payments to sites like MyEx.com. Without this removal revenue, revenge porn sites may be forced to shut down as revenue dries up.

  1. Organized Attacks and Doxxing by Hacker Groups

Another solution is organized attacks on revenge porn sites by hacker groups. The international group Anonymous came to Charlotte Laws’s aid when she spoke out about her daughter’s nude photographs on IsAnyoneUp.com. [257] Anonymous crashed Moore’s servers on at least one occasion. [258] Later, the same group crashed Moore’s servers before he was scheduled to have a live interview with the BBC. [259] Hacking has thus been a powerful tool against individuals who have benefitted financially from revenge porn.

Depending on the nature of the hacking, however, it may be illegal. [260] A number of federal laws prohibit hacking, and this Comment does not advocate illegal conduct. Regardless of its legality, because hacking often involves an invasion of privacy—albeit not as intimately as in the revenge porn context—attempts to regulate revenge porn through hacking would undermine, rather than advance, individual privacy concerns. For this reason, this Comment merely recognizes that organized attacks have served, and may continue to serve, as one possible solution for the privacy problems associated with revenge porn sites.

Another potential solution that has sprung up is the concept of “doxxing,” in which Internet users band together and search the web for personal documents of an online bully in order to “out” the bully by exposing his or her identity. [261] Doxxing differs from hacker groups in that the information sought typically is publically available and simply aggregated by a collection of Internet users. [262] In other words, it is distinguishable from attacks by groups like Anonymous because “it’s like hacking, but legal.” [263] Doxxing provides benefits for victims of revenge porn without the negative drawbacks of hacking and may aid victims in gathering information about their anonymous posters or about website administrators. Doxxing may then allow a victim to sue a poster directly, using one of the above-mentioned claims such as IIED or publication of private facts. While this solution may not be beneficial if a victim knows the identity of the poster already, it may be helpful in that the victim can then use the information obtained from doxxing as leverage in persuading that poster to remove the content from the revenge porn site.

Conclusion

Revenge porn is, at least for now, an ongoing Internet phenomenon. Individuals who may find their sexually explicit content posted on a revenge porn website have several causes of action to which they may turn for redress. Despite this, there is no guarantee that a revenge porn victim will be successful in asserting any of those claims. It appears to be prohibitively difficult to craft legislation that specifically targets revenge porn without inadvertently impinging intellectual property rights or free speech. This Comment identified the possible repercussions of reforming current law in reaction to revenge porn. The impact of revenge porn reforms could be far-reaching and lower the protections granted by section 230 and the First Amendment.

Instead, this Comment advocates that nonlegal remedies may be the most effective tools to address revenge porn. Websites that display revenge porn cannot succeed if there is no market for that content. In other words, the market itself may drive out the Hunter Moores of the world by driving out revenge porn as a genre. Thus, the social norms that tacitly permit individuals to share sexually explicit content must also now strongly protect the interests of those who have shared that content. As communities grow and mature, and as individuals become more socially conscious online, one hopes that revenge porn sites fade in popularity and from the public eye.

Samantha H. Scheller**

                     *   © 2014 Samantha H. Scheller.

                  **   The author first and foremost wishes to thank Sean Moloney for his constant support and for inspiring me to aspire for more. The author thanks Professor David Ardia for his early engagement, Will Smith for his invaluable feedback, and Charles Loeser for his tireless work. Finally, the author thanks the Board and Staff of the North Carolina Law Review for its patience and care.

DOWNLOAD PDF | 93 N.C. L. Rev.551 (2015)