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Oct 13 2014

UK Revenge Porn Law Could be Model for US Law

The United Kingdom could soon pass the world’s first national Revenge Porn bill. The legislation, which is currently going through Parliament, will cover any private sexual image of someone that is circulated, both on and offline, without their consent and designed to cause distress. The bill defines Revenge Porn as “Photographs or films which show people engaged in sexual activity or depicted in a sexual way or with their genitals exposed, where what is shown would not usually be seen in public”  If convicted, the person could face as much as two years in jail.

New technology always breeds new crimes and society must then work to find a balance between the legal and the illegal use of the technology. While several US states have passed criminal Revenge Porn statutes, most do not have any law on the books. Use of the phone and/or the Internet provides a basis for Federal jurisdiction in most RP cases here in the States. Passage of the UK bill should energize the conversation about a similar national law here in America. The main argument against RP laws is not that they are not needed or that the behavior isn’t wrong or should not be punsihed, it is that the law if not properly drafted could ensnare folks engaging in otherwise legal behavior – usually Constitutionally-protected activity.

Blind and occasionally fickle

To be sure, the US has stronger speech rights than Europe – witness how easy it is to be sued for libel and defamation across the pond for example. So like many statutes a disclaimer could be added that nothing in the bill shall be used to prosecute Constiutionally-protected speech. That would free newspapers and reporters from liability for sharing an RP image as part of a news story on RP.  The law could also be narrowed by focusing on the person’s intent – the dissemination of the image must be intentional and the images must be the kind of image that a reasonable person would expect to be private. I recently argued a case before the Georgia Supreme Court where an anti-stalking law was used to obtain a permanent order of protection against a web site owner who merely wrote about and criticized his target using some harsh language. The website owner also threatened to expose already-public information about the target and her family. At oral argument, the justices seemed to understand that speech must cross over to “true threats of physical harm”  before speech can be prohibited. The anti-stalking law need not be struck down but its application can easily be tailored to protect Free Speech.  We’ll see how the decision comes out in about 6 months but  I bring this up to point out that as is often the case, new laws do sometimes take a few cases to shake out the boundaries and find the appropriate and Constitutional way to  apply them.  As I have written before, the same thing happened when states began passing Rape Shield Laws, prohibiting newspapers and others from publishing the names of sexual assault victims and preventing those victms from being cross-examined about their prior sexual behavior.  Now all courts have set guidelines on what is restricted and what is allowable in that arena and a balance between the vicitm’s rights and the First Amendment has been found – the issue is rarely litigated anymore.

The same should happen in the RP arena.  With the news of a new leak of thousands of private images – this time from Snapchat third-party apps- and with cases of RP growing everyday, a national model is a good way to send the message that this behavior will not be tolerated; that the victim’s right to privacy does not end merely because they chose to share a private image with a person of their choosing; and that the law will rise to address society’s needs.

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