Revenge Porn Should Be Fought in State Criminal Courts Instead of the Federal Copyright Office

New York became the 46th state to criminalize revenge porn in late July 2019. Sharing intimate photos without consent with the intent to cause harm will be considered a Class A misdemeanor. The penalty will be up to one year in prison plus fees. Victims will be able to obtain court orders to remove images posted on the internet. The new law will take effect beginning in September 2019. There are only four states that have not passed similar laws: Massachusetts, Mississippi, Wyoming, and South Carolina.

Victim’s rights groups applaud the new law as a step forward but are concerned that it does not go far enough. Specifically, the requirement to show defendants acted with “intent to harm” would close off many cases that were otherwise prosecutable.

Many defendants will be acquitted by arguing that they posted nude photos on Twitter and social with no ill intent towards their ex-girlfriend. However, the new law will encompass cases where men send intimate photos to women’s employers or landlords as such acts would be difficult to explain as anything other than malicious.

Tech companies like Google and Facebook had also lobbied hard for the “intent to harm”clause. The requirement would protect teens that are just sharing photographs of their girlfriends or boyfriends, but would also protect tech companies from liability for hosting such content in the first place.

However, the Communications Decency Act of 1996 protects third party websites from user content already. The intent clause is overkill if its purpose is to protect tech companies who host offending images.

The Right to Be Forgotten Revised

New York’s law is unique in empowering courts to order the removal of the offending photographs entirely. This new authority is akin to Europe’s right to be forgotten that privacy advocates are promoting across the Atlantic. Men (and women) who post their partner’s intimate photographs without their consent could harm the employment and educational prospects of their partners. The photographs could also expose the partners to bullying or sexual harassment by others.

However, the right to be forgotten can never be fully implemented in the United States because of the First Amendment. The government, including state courts, cannot order that content be removed merely because someone finds the content offensive. The essence of free speech and free press is that the people can publish any content they want without government interference.

Although pornography is not considered protected speech, the judicially has utterly failed in providing any definition or guidance as to what counts as pornography. “I know it when I see it” – as Justice Stewart wrote in 1964 – is not adequate when a fundamental right is being challenged.

One potential solution would be through enforcement of copyright law. The process involves registering the nude images or videos with the United States Copyright Office. The Copyright Office can accept up to 750 images from a single year, though published and unpublished photographs must be uploaded separately. The copyright protection lasts up to seventy years after the author’s death.

Registering nude images or videos allows the person to claim legal ownership over them. If anyone attempts to publish the images or videos without the author’s consent, the author is legally entitled to compensation for lost income and up to $150,000 for statutory damages.

The Digital Millennium Copyright Act requires that authors give websites notice and an opportunity to remove the offending media before filing a lawsuit for monetary damages. However, content removal is the purpose of banning revenge porn to begin with.

Of course, the downside to using the copyright office to fight revenge porn is that women must officially register intimate depictions of themselves with the federal government. It is counter intuitive to share images with a government agency in order to prevent the release of those same images by other persons.

Moreover, this protection is only applicable to media taken by the author. If someone else is filming your sex tape or taking your nude images, then copyright protection might not be a viable option.

The fact that victims of revenge porn must use copyright law in this convoluted and absurd manner shows how important it is for states to deal with this issue. Revenge porn is not about stealing personal images – it is about harassment and punishment. Victims should be able to confront their harassers in criminal court where criminal penalties may apply rather than weaponize an unrelated field of law.