Last week, the Harvard Law Students for Reproductive Justice hosted a panel to discuss the law’s intersection with revenge porn. The paradigm case of revenge porn involves the public online posting of nude or sexually explicit pictures of a person, often with attached identifying information or derogatory comments. Revenge porn took life on submission sites like “Is Anyone Up?” which allowed for anonymous submissions, often appealing to former romantic partners who wished to humiliate their (mostly female) exes. However, all three panelists agreed that this paradigm story of a woman victimized by a jilted partner often belies the real complications that exist in the revenge porn space.

Revenge porn draws its power from an archetypal story with preset genders and sexualities, explained Sarah Jeong, co-Editor-in-Chief of the Journal on Law & Gender at Harvard Law School.  Misogyny, norms about sexuality, and power imbalances between harasser and victim give revenge porn its power.  The fact that sexual images presented out of context are exceptionally damaging speaks to problems in how our society handles sexuality, said Whitney Erin Boesel, a PhD student in sociology and fellow at the Berkman Center for Internet & Society. Having nude or sexually explicit images online shouldn’t result in harassment, job loss and humiliation – but for many, it does.

The breadth of issues implicated by revenge porn prefaced a theme of the panel: the difficulty of defining revenge porn and tailoring an effective solution without infringing on other constitutional interests.  Andy Sellars, the Assistant Director of the Berkman Center’s Digital Media Law Project, outlined the problems with criminalizing revenge porn as a type of communication.  Defining revenge porn as simply posting explicit pictures of someone without their consent would implicate the work of paparazzi, for example.  And some revenge porn is obtained through trickery, extortion, or hacking, instead of being willingly transmitted to one party and then shared without permission.

Some states are considering laws criminalizing the malicious posting of sexually explicit pictures and videos without the consent of the pictured party.  However, such laws could create duties for third parties that contravene Section 230 of the federal Communications Decency Act, which grants immunity to third-party publishers from torts like defamation.  Noting that the architecture of the Internet depends on ceding the right to control information after it leaves one’s immediate control, Jeong said that we must be careful not to craft overbroad remedies to revenge porn.

While First Amendment law recognizes certain exceptions like child pornography, obscenity, and fighting words, revenge porn is difficult to circumscribe.  Sellars nominated the tort of public disclosure of private facts as the most nuanced legal remedy to the problem.  While the boundaries of the tort vary from state to state, the material in question must be private, must not be a matter of public concern, and must be disclosed publicly in a way that would be offensive to a reasonable person.

The tort is traditionally invoked when a party has not consented to the publication of the material at issue.  Since most revenge porn is posted without consent after an initially consensual transmission to the posting party, courts would have to allow for revocation of consent to trigger the tort.  While parsing unwritten communication of consent would be thorny, Sellars argued that it is plausible to find that, by texting a picture, a party consented to that initial transmission but not to any further transmission of the picture.  However, significant barriers remain before this could be an effective remedy.  Public disclosure of private facts is a tort in most, but not all, states and has not yet been considered by the Supreme Court.  Further, it is a civil wrong, meaning victims of revenge porn would bear the burden of pressing a lawsuit.

Boesel and Jeong were somewhat wary of legal remedies for revenge porn.  Boesel said that “revenge porn is far more revenge than pornography,” suggesting that attempts to address the problem must define it as an action, not communication.  She argued that any definition of revenge porn should not be limited to material posted on sites dedicated to revenge porn.  If a person posts similar pictures on social media, or simply causes them to be generally seen, the same act of revenge enabled by gender and sexual norms has taken place.  To that end, Boesel suggested addressing the second order effects of revenge porn, like employers’ refusal to hire someone because she was a victim of revenge porn.  This broadens the scope of a potential remedy, as the harm caused by revenge porn can be reputational, monetary, psychological, and safety-related.

Jeong also advocated a broader solution, arguing that revenge porn is just a rarified form of the harassment and discrimination women face regularly.  Because revenge porn is a disparate impact issue in reality, Jeong suggested that it would be better placed on the spectrum of stalking, harassment, or domestic violence.  Even then, she was wary of giving more power to the state to imprison people.  Focusing on revenge porn to the exclusion of the forces of sexism and body shaming that enable it would do little to solve the real problem.  Ultimately, “a woman’s naked body is being used as a weapon against her,” said Jeong.  This demands a much more comprehensive solution than simply removing pictures from a website.

For more information on Harvard Law Students for Reproductive Justice, check out their Facebook page at https://www.facebook.com/pages/Harvard-Law-Students-for-Reproductive-Justice-HLSRJ/118847231553495

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