Posting an identifiable nude photo of an ex-romantic partner without their permission can now land a disgruntled ex-lover behind bars for up to six months with up to a $1,000 fine in California — effective immediately.
The new law outlawing “revenge porn,” which involves posting sexual photos of a former partner online in an act of revenge to publicly shame their ex-romantic partner, was signed into effect on Tuesday by California Gov. Jerry Brown (D). The law is intended to protect people who exclusively shared photos with their partner during a relationship from a harmful invasion of privacy, and applies so long as one of the involved parties lives in California.
Many revenge porn photos end up on websites that specialize in posting such materials and often charge victims a fee to remove the photos from the website. For example, MyEx.com charges $499 to remove photos from the website within 72 hours, but there is no guarantee that the photos can’t be posted to the website again or to any other website.
Michael Fertik is the founder of Reputation.com, a website that helps people who have explicit photos of themselves posted online, for $129 per year. He says photos often only appear on one to three websites, but says some revengeful lovers manage to get an ex’s photo on more than 2,000 websites.
Because it is so hard to permanently erase or keep an image off the Internet once it has gone viral, many of the legislation’s supporters say they hope that the law will prevent people from posting revenge porn in the first place.
“Until now, there was no tool for law enforcement to protect victims,” the bill’s author, California Sen. Anthony Cannella (R-Ceres), said in a statement. “Too many have had their lives upended because of an action of another that they trusted.”
Though the law has received a lot of support from many anti-revenge porn activists, Holly Jacobs, who founded the Cyber Civil Rights Initiative and its End Revenge Porn campaign, say that the loopholes in the legislation are concerning since they don’t protect everyone who is vulnerable.
One of the loopholes in the bill is that the legislation does not include photos a person would take of themselves and share with their partner — it only applies when the person spreading the image online also took the photo. This is concerning to advocates such as Jacobs since a recent CCRI study found that as many as 80 percent of revenge porn victims said that the nude photos posted of them were ones they had actually taken.
“The nation is watching California to see if it will be one of the first states to take a clear, principled, and effective stand against a practice that ruins lives and reputations. We’re trying our best to make sure that it does,” Jacobs said.
The California law also fails to protect those who send an intimate photo of themselves to another, even if they don’t give permission for the recipient to share that photo with anyone else.
Though the bill, loopholes and all, has mostly received support from the public and anti-revenge porn advocates, some groups, including the American Civil Liberties Union, expressed concern that the law was a violation of the First Amendment — specifically, freedom of speech.
The ACLU argued that if someone wanted to share a photo that had political implications or contained evidence of a crime, the law may prohibit a person from sharing it.
Concerns about violating the First Amendment is what prompted Florida lawmakers to scrap a revenge porn law earlier this year.
Cyber rape
Anti-revenge porn activists explain revenge porn as a sort of cyber rape since the photos can be socially and emotionally damaging to the victims, and in some cases, physically threatening.
Jacobs know this all too well. She says that she was a victim of revenge porn for more than three years after her ex-boyfriend posted explicit photos and videos of her, along with her name and contact information, on several porn websites. Jacobs says that because she and her ex-boyfriend were dating long-distance, they often used technology to keep their physical relationship alive.
When she discovered the photos, Jacobs says she went to the police but they told her that since she was over the age of 18, the pictures were posted online — which is out of their jurisdiction — and that technically the pictures belonged to her ex since she gave him the photos, there was nothing they could do for her.
“We would only have been able to follow through with the charges if we linked his IP address to the pictures that he took of me, not those that I took of myself,” said Jacobs.
Even the FBI told Jacobs they couldn’t help her, saying her ex didn’t violate any law.
Before this new law passed, a person could sue their ex for invasion of privacy, but posting photos or videos didn’t constitute as harassment under California state laws. Victims also would be responsible for paying for the civil lawsuit themselves.
“I couldn’t believe that it wasn’t illegal,” she said. “I started to blame myself. I thought, if they don’t recognize this as a crime, it must be my fault.”
Jacobs says her ex’s relentless attempts to embarrass her, resulted in her having to change jobs, go through several email addresses, legally change her name, deactivate all social media accounts, cancel her attendance at professional meetings and restricted her from being able to publish anything in her field of study.
“There was no way I could network under this name that made me look like a porn star,” she said.
“This is a form of sexual assault. Someone is violating you in a sexual way without your consent. And it doesn’t just happen once. It happens over and over and over, every time you see a new picture, or get an email from someone who has seen you.”
In an email to Mint Press News, Jacobs said, “Obviously I would prefer that legislators pass a strong law the first time around so that we don’t create more work for ourselves in the future (having to amend it in the future). However, a law on the books that protects some of the victims is better than nothing.”
End Revenge Porn
Seeing just how affected her life was, Jacobs says she decided to start EndRevengePorn.org in August 2012 to collect signatures in favor of criminalizing revenge porn in the U.S. She also included a survey on her website to collect data related to the prevalence of revenge porn and the effects it was having on its victims.
“In relationships, there exists an unwritten privacy contract according to which individuals expect that involved parties will keep intimate exchanges (special moments, personality quirks, secrets, etc.) within the confines of that relationship. While relationships may not always last, we support the preservation of this contract and privacy,” the End Revenge Porn campaign website says.
Danielle Citron, a professor at the University of Maryland’s Carey School of Law and author of “Hate 3.0: A Civil Rights Agenda to Combat Discriminatory Online Harassment,” agrees and said, “Consent is contextual. Consent to sharing with a loved one is not consent to sharing with the world.”
California is the second state in the U.S. to implement such legislation. The only other state to have passed such a law is New Jersey, which passed a law in 2004 making it a felony to pose secretly recorded videos or photos online.
Under New Jersey’s law, a person can spend three to five years in prison and pay a $30,000 fine for violating the privacy of another, by posting an image or video without permission of the subject, even if they originally took the photo or recorded the video.
Mary Anne Franks is a professor at the University of Miami Law School, who is currently working with legislators in Wisconsin and New York to create a bill to outlaw revenge porn.
She said that while laws like California’s are “in the right direction,” the loopholes in the law are indicative of the “victim-blaming” attitude many people have when it comes to revenge porn, since many of the photos are taken for sexting purposes.
“I think we are really looking at a ‘blame the victim’ mentality here,” said Franks, meaning a mentality where people who take the photos of themselves were “asking for it.”
“It’s disturbing that the drafters apparently think that some victims of non-consensual pornography are not worth protecting.”
Franks said one reason lawmakers may have chosen to not include self-shots in the legislation was to create a distinction between people who send photos of themselves to websites and those who do not.
She says another issue with the California law is that because the law applies to those who post photos to “harass or annoy,” the perpetrator must have “intent to cause serious emotional distress,” which may be hard to prove in court and excludes those who post the photos for monetary gain or bragging rights.