A judge recently handed down an 18 year sentence to Cyber-Exploitation site operator, Kevin Bollaert. While the Court decision provided a measure of vindication to the many women he victimized, the overwhelming majority of cyber-exploitation victims out there remain unprotected. That is because Bollaert's prosecution was based primarily upon his extortion of the victims. In other words, had he simply posted the lewd and embarrassing pics, he may well be a free man today. It was the fact that he demanded money to remove the postings that led to his conviction.
Absent from the Court dialogue, however, was the issue of culpability of the spurned exes who sent Bollart the revealing photos in the first place. Revenge porn is increasingly common after an ugly breakup. Social media gives angry exes a very powerful weapon with which to lash out at a former partner. The consequences of angry postings include damage to a current or potential relationship, personal humiliation, and economic fallout as a result of reputational harm in one's industry or workplace.
The widespread prevalence of these injuries has resulted in an outcry for criminal penalties. Today, intentionally posting lewd and embarrassing content about an ex on social media is a crime in 27 states. This leaves many victims without criminal recourse. The overwhelming majority of victims have absolutely no civil recourse which would enable them to be financially compensated for damages sustained.
I advise my clients that it is better to prevent unwanted postings before they occur. We can avoid much pain and embarrassment with a social media clause within a pre-nup, post-nup, or co-hab (all of which I term Love Contracts). Some people say that that this is "going too far." Perhaps, for some, it is. However, who amongst us hasn't been shocked by the behavior of an ex at some point? Think about it; for eons, an angry spurned partner would commiserate with friends over drinks. Now this group has access to a slew of embarrassing photos and a "post" icon, all on their smartphones.
The social media clause is also a great tool within an intact relationship. It has become increasingly important for all of us to manage our cyber presence. As a certain former congressman can attest to, the images out there do not go away. Prospective clients, employers and social clubs all routinely do their web due diligence research. With such important stakes, it is a very good idea to establishing social media boundaries within every relationship. The parties may have very different ideas about what is appropriate to put "out there." I had one client whose wife posted pictures of him in drag at a costume party, and they went viral in his (now former) prestigious law firm. The social media clause also establishes monetary sanctions for harmful and hurtful postings after a breakup.
A social media clause could very well have prevented Charlie Sheen's bestiality-themed tweets about his ex, Denise Richards.
Ann Margaret Carrozza is a renowned Elder Law and Estate Planning Attorney who also served as a New York State Assemblywoman.