Revenge porn describes nude or sexually explicit images or recordings of a subject shared online without the subject’s consent. The popular term revenge porn harkens from the scenario in which an unhappy ex-lover publicizes the intimate, private digital media of his or her former flame online in an act of revenge. The victims of revenge porn are disproportionately female.

However, revenge porn is a misleadingly narrow descriptor for the wider social trend. For example, there are pay-to-play style websites where users can gain increased access to sexually explicit material by submitting similar media to add to the trove. Additionally, the publishing of revenge porn can be motivated by callousness of profit rather than the malice of a bruised ego. Revenge porn profiteers Hunter Moore and Kevin Bollaert have made tidy sums by operating websites that publish revenge porn. Moore has profited off of ad sales from his now defunct website IsAnyoneUP.com where he previously featured sexually explicit and nude images hacked from the personal digital devices of others. Before being investigated by the State of California, Bollaert extorted his victims, offering to remove victims’ images in exchange for money and gift cards via a website he operated separately from his revenge porn website.

I learned a lot about revenge porn from working with the Office of the California Attorney General during the Bollaert prosecution, which resulted in the first conviction of a revenge porn website operator nationally. Bollaert’s victims suffered significant harm, including loss of employment, public harassment, fear of personal safety, and significant emotional and psychological damage.

In addition to the harm revenge porn causes, once a person becomes a victim of revenge porn, it is not a situation that can be reversed; the offending media is online, and it’s digital footprint isn’t going to be erased with the wave of a magic wand. Claims that copyright protections are the best defense to revenge porn are woefully overstated. Copyright law protects original works of authorship fixed in tangible mediums of expression such as photographs and video recordings. In theory, if your nude selfies somehow makes it online, you can issue a Digital Millennium Copyright Act (DMCA) takedown notice to the websites featuring the offending content. Moreover, Section 230 of the Communications Decency Act, which largely immunizes ISPs from the legal implications of content published by third parties, does not protect against intellectual property infringement.

Yet, this is a deficient method of remedying the harm caused by revenge porn. Besides solely offering a remedy to victims who authored the media themselves, issuing takedown notices would not only require a victim to be aware of his or intellectual property rights, but would also require that the victim have unlimited free hours to expend or unlimited capital in order to hire a team of lawyers. Moreover, it’s not unlikely that a website would ignore an individual’s takedown notice. After all, a victim of revenge porn is not going to have clear proof of his or her copyright like an actual filing with the U.S. government, and it is conceivable that the issuer of the takedown notice doesn’t have the resources to take additional steps to enforce his or her intellectual property rights. This hardly seems like a sufficient solution when your private photos are circulating the web, spreading and multiplying as time passes.

Victims of revenge porn can also file tort claims against the individuals who published their private media such as invasion of privacy, intentional infliction of emotional distress, or public disclosure of private fact. I cannot judge what kind of redemption this provides victims, but it only gets to the root of the social problem to the extent that these lawsuits serve as deterrents to future revenge porn perpetrators. In turn, that deterrent effect depends on how many victims take legal action against their abusers and how successful victims are as plaintiffs. Not every victim is going to be eager to enter into a protracted legal battle and bring further publicity to a situation they may find humiliating. We must take additional measures as a society in order to make preventive changes.

Social media websites are beginning to explicitly ban posting revenge porn. First Reddit, then Twitter, and most recently Facebook have begun instating specific rules in their user policies and community standards prohibiting revenge porn. This is an exceedingly positive development because it promotes public awareness of revenge porn as a social problem. In our offline lives, we are well attuned to societal norms and constraints. What are considered the habits and beliefs of our culture are in large part ingrained by historical practices so far-reaching that we are often not even aware of the sources of our assumptions. Cyberspace is a new frontier, and we are still figuring out what types of behavior we are willing to tolerate within this new medium. Important questions about the values of cyberspace are unresolved, and it is unclear what place principles like free speech and privacy have on the Internet. In addition to the obvious fact that social media websites are in the best position to regulate their content, that is why industry acknowledgement of revenge porn as harmful and intolerable behavior is key to social change.

In considering what kind of behaviors we will tolerate in cyberspace and the value choices those decisions make, we must also consider whether it is in our interest for the law to regulate online behavior. In the case of revenge porn, legislation should play a role in disincentivizing the harmful behavior. The behaviors is widespread enough and the resulting harm is serious enough to require legislative attention.

Several states have passed legislation prohibiting revenge porn, and the ACLU has publicly challenged such legislation, arguing that these laws could criminalize and chill protected speech. I believe First Amendment concerns could be addressed by thoughtfully and narrowly drafted legislation. Specifically, legislation criminalizing or penalizing the dissemination of revenge porn should specify that media is only prohibited from being disseminated if it is without the subject’s consent and should include exceptions such as the waiver of any legal right or claim if the subject has publicized the media. I would be happy to expound on what should be included in draft legislation and how provisions of the legislation should be drafted if this is of interest to any readers, but for the sake of brevity I will leave that for a later post.

Again, I acknowledge that it is key that industry players make it explicitly clear that revenge porn is an intolerable act of cyber bullying. Moreover, it is a victory when revenge porn profiteers can be charged with traditional crimes in the event that they extort their victims, steal the identities of their victims, or procure media by illicit means. However, revenge porn can cause such serious harm that it must be addressed with legislation. It is behavior that breaches another individual’s ability to live a private life and to be free from intentional emotional abuse, and it is far from being eradicated. A legislative solution is not always the answer, but it is appropriate when a widespread social behavior threatens the ability of others to live normal, uninterrupted lives.