The Struggle to Get Revenge Porn Off the Internet

The site ThatsNotCool.com offers “callout cards” to send to people who cross your digital boundaries.

Last week, England became the third country to enact a national law criminalizing revenge porn. The law, which covers England and Wales, makes it illegal to share sexually explicit images or videos of someone without their consent.

The growth of social media has brought with it an epidemic of nonconsensual sexy-photo sharing—called “revenge porn” because the images are often uploaded by an ex-lover. There’s a definite gender issue here: in an estimated 90 percent of cases, the person who uploads the photo is male and the person whose photos get misused is female. Activists have struggled to help lawmakers understand the nature of the problem and to create statutes that help victims reclaim their photos.

Israel was the first country to pass a revenge porn law in January 2014, punishing the nonconsensual photo sharing with up to two years in prison. Last May, a German court ruling established a law there, which is seen as the world’s most progressive. In Germany, if someone asks you to destroy nude or erotic photos of themselves, you must legally comply.

In America, things are much murkier. In March of last year, Democratic California Representative Jackie Speiers announced she would introduce federal revenge porn legislation, but her bill has still not emerged. She said recently her proposal is a few months away.

Complicating matters in the US is a provision of the Communications and Decency Act, which states, “No 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.” This law, which is designed to shield social media platforms like Facebook and Twitter from liability concerning things its users share, has the unfortunate effect, for now, of protecting revenge porn sites like UGotPosted and IsAnyoneUp from prosecution. 

This complication is something Speiers is navigating in drafting her bill. “We’re trying to create a safe harbor provision to make sure that companies who are taking steps to respond to allegations of revenge porn won’t face charges,” the Congresswoman told reporters. 

In the absence of a national law, states have been addressing the revenge porn locally. In all, 13 states have passed revenge porn laws, and bills have been introduced in 28 others.  The process has been one of trial and error. California’s initial law, for instance, was much too lenient: it initially did not cover selfies that were posted by others, pictures shared by hackers, or cases where the confidentiality of the images was said to be in dispute. The law has since been amended. Arizona’s law, conversely, was initially seen as over-broad, and challenged by the ACLU. As first written, it might have criminalized the sharing of art photos featuring nude models or pictures of nude infants posted by mothers.

A more troubling problem in the laws, according to victims’ advocates and prosecutors, are the “emotional distress” clauses commonly found in them. These clauses require prosecutors to prove that people sharing images did so with the intent to harm the person in the photos. A defendant, hoping to sow doubt around this issue, could claim instead they posted the images for “profit” or “fun.” Such clauses make convictions more difficult, which advocates fear may lead prosecutors not to pursue such cases. A remedy for this can be seen in the law passed last month by Illinois, which discounts motive on the part of people sharing images. Instead, it makes the sharing of images in itself criminal. It, likewise, does not require that the images be nudes, only that they be sexual in nature. 

Because it’s a new phenomenon, data on revenge porn is difficult to find. One study from McAfee found that 1 in 10 ex-partners threatened to share nude or sexual photos online and that 60 percent of those making such threats followed through. A separate study, from Pew, revealed 40 percent of adults on the internet had been harassed online, while 19 percent had witnessed others being sexually harassed there. 

Danish journalist Emma Holten addressed the issue of how revenge porn relates to misogyny and consent very well in this recent video for the Guardian: 

State laws barring revenge porn are beginning to result in prosecutions. In November, a California man was convicted of posting a topless photo of his ex along with derogatory messages. The defendant, who also violated a restraining order, received a year in prison, three years probation, and domestic violence counseling. This February, California also became the first state to convict someone for running a revenge porn site. Kevin Bolleart, who operated UGotPosted, was found guilty of 21 counts of identity theft and six counts of extortion. Prosecutors declined to pursue Bolleart for revenge porn, which is a misdemeanor in the state, and instead tried him for charging women whose pictures he’d posted $350 to have them removed.

This was similar to the case of Hunter Moore, the former operator of the revenge porn site IsAnyoneUp who was charged in January of last year—not for operating his site, but for hacking and conspiracy to hack. This January, the Federal Trade Commission shut down the site IsAnyoneDown and banned its founder Craig Brittain from posting photos and videos without people’s consent. 

Some commentators applaud these actions, criticizing the amount of effort directed at those who disclose photos and videos, when it’s the longevity the images enjoy on the internet that can be so damaging. Others fear that, even with laws on the books, revenge porn will join stalking as a crime perpetrated primarily against women, which police will be reluctant to pursue. All advocates, meanwhile, decry the fact that in 37 states those targeted by perpetrators of revenge porn still have no legal recourse.

While laws like those in Germany and Illinois point the way toward legal protection from revenge porn, we’re still a quite a ways from providing justice to victims. In many ways, these laws miss the point. They create a game of whack-a-mole where people whose photos have been uploaded have to invest thousands of dollars and years of work in hiring a legal team and prosecuting the photo-posters. The victim also risks exposing themselves publicly by filing a lawsuit against someone who uploads their photos without permission. When all you want is for your naked pics to disappear, it’s got to be traumatizing to go through a legal process where lawyers, clerks, and judges are all going to be examining your erotic photos. Even if the victims here succeed, it’s hard to actually get your images off the internet once they’re out there. The internet is bad at forgetting. While some countries in Europe are considering legislation that would make it easier to demand information online be erased, it’s a stretch to think that naked images won’t linger on the internet’s shadier sites forever.

If victims do have the enormous resources required to go through the legal process and win, the perpetrator may be fined or sent to jail. That’s not a long-term solution for what’s clearly a widespread problem. In addition to looking at legal avenues for justice, we need to see a culture change around digital privacy. Far too often, women whose photos are misused are blamed for sharing their photos in the first place. News stories often pin blame on the people—especially young people—who send sexy photos to people they think they can trust, painting these actions as short-sighted and risky. Really, this is an issue of consent. The blame for nonconsensually posting private photos falls squarely on the shoulders of the people who post them without permission. Reforming this problem will take more than legal action, it will require a cultural shift to recognize the necessity of consent. 

Related Reading: Teen Sexting Isn’t the Problem, Lack of Consent Is.

Leela Ginelle is a trans woman playwright and journalist whose work appears in PQ Monthly, Bitch, and the Advocate.