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May 19 2013

Entering the “Revenge Porn” Fight

The capacity of the internet to inform, entertain and frankly change the world is evident. But like all technology, it can be used by small-mind people to advance hurtful causes or just be plain rude. Last month or so, I was contacted by a young woman who wanted my help in getting pictures of herself that she had sent to her boyfriend off a “Revenge Porn” site. She and her now ex-boyfriend had engaged in a little friendly “sexting” where they would send risque pictures of each other via phone. After the break-up he posted them on a site called Texxxan.com. She had trouble finding out the site’s owner and did not know how to get the pictures off the web.

That led me to a search for information about this new topic which led me to Holly Jacobs. Holly is the literal “poster child” of this newest cyber-epidemic. For more than four years, she was stalked and harassed by an ex boyfriend who kept posting personal and nude photos of Holly on Revenge Porn sites. At first , horrified and embarrassed, she kept the problem to herself until it got too big to deal with and she could ignore it no longer. Then she decided to go public with the issue and start a campaign to change the law in her home state of Florida to make it harder for websites to make money off Revenge Porn imagery. She also started a great website devoted to the topic called EndRevengePorn.com. The site has lots of useful information on the topic and links to lawyers in several states who have agreed to help victims on a pro bono or reduced fee basis. I spoke at length with Holly the other day and was amazed at her courage and tenacity. I gladly offered to add my name for victims in NY to call and consult on how to rid themselves of this problem.

The main issue is that the Digital Millennium Copyright Act (DMCA) and the Communications Decency Act (CDA) protect websites and third party webhosts who allow folks to post content on their site. They have no obligation to check if the material is copyrighted or violates any privacy rights of the individuals shown in the content. Their only obligation is to take down the content once someone files a takedown notice with the third party, claiming ownership of the content or some other form of intellectual property violation. Then the person who posted it has to establish their right to the material or it stays off the site. So Holly is hopeful that the laws can be modified to make it illegal to post revenge porn and to make the web hosts responsible if they had reasons to believe the content is protected or if they get repeated takedown notices. Understand that these sites (through advertisements) are making good money off these images and videos. And many of them know exactly what they are doing and what is being posted. So that’s not really what the DMCA and CDA were designed to protect. But as someone who represents a lot of web-based companies, I am a big fan of the protection afforded by the DMCA and the CDA so while I fully support Holly in her pursuit, I am hopeful that changes can be made without throwing the baby out with the bathwater.

In thinking about the issue further, I decided that I would rather focus on helping the individual victims rather than trying to make a wholesale change to internet law. This issue is really not far from topics I have been involved in for years. I am the founder of The Law Squad (www.thelawsquad.com), a not-for-profit speaker’s bureau that travels to high schools throughout Long Island bringing judges, law enforcement personnel, legal experts, drug and mental health counselors and others to the schools to talk to teens and their parents about new issues that young people are confronting everyday. While the topics are very varied – prom issues, social host laws, teen driving- many schools have asked us to present a seminar on “cyber-bullying.” This is the use of the Internet and related technologies to harm other people, in a deliberate, repeated, and hostile manner. As it has become more common in society, particularly among young people, legislation and awareness campaigns have arisen to combat it. So Revenge Porn is merely just cyberbullying taken to a whole new level. Additionally, my digital image website (www.extortionletterinfo.com) helps folks combat Getty Images and other media companies who are trying to extort exorbitant fees for minor use of copyrighted imagery, in a process called “copyright trolling.” So trolls plus bullies sure sounds like what these losers are doing on Revenge Porn sites.

So together with Matthew Chan (who developed the extortionletterinfo site) I am launching FightRevengePorn.com. The site will provide resources and information on how to combat this growing problem. Matt will handle ideas and solutions on the “cyber” side of the issue while I will do so on the “legal” side of the issue. The legal premise to fighting them is pretty straightforward. For “self-shots” taken by the people in the picture, they would be the ones who own the copyright to the image. But even where the picture or video was taken by the ex-BF, the folks shown in the picture have their own rights. First of all, chances are they agreed to be in the picture just so the recipient could have it for themselves, not to publish to the world at large. Second of all, each state has its own right to privacy/right to publicity laws which protect people form the commercial exploitation of their face and image. So takedown notices would work to get them off the sites, which is the immediate problem. Then the poster must be pursued through litigation to get him to understand that this will not be tolerated any further. Depending on what other behavior accompanies the posting of the pictures, criminal prosecution may even be possible. When we developed the digital image site, many others became regular contributors who came up with many creative and workable solutions to that problem. I expect a dialogue similar to that will occur on this new site as well.

I want to thank and credit Holly Jacobs for taking this fight to the public and for being willing to put her face and name out there so that other victims can feel less ashamed and more willing to combat their bullies and trolls. For more information on this topic, please visit EndRevengePorn.com and FightRevengePorn.com. Thanks.

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