Imagine coming home from work or after class and finding your email account filled with messages from strangers telling you how "hot" you are and asking you if you are free to "hook-up" that night -- a mailbox full of messages from friends alerting you that there are nude pictures of you published on revenge-porn website complete with your name, email, Facebook and Twitter information. Imagine, in a panic, googling yourself and with a sick feeling finding that the first hit is that very website with a thumbnail image of you, naked. In an instant, you feel your life is over. Anyone can get on the site: employers, prospective employers, friends, strangers, even your grandparents. You ask yourself, how could this have happened, and more importantly, what can you do now? How you end up answering those questions and the speed with which you act, may make all the difference in minimizing the damage to your life, to your self-esteem.
As it is generally understood, revenge porn refers to the unauthorized publication or dissemination of nude or otherwise sexually compromising photographs or video. Be it criminal or civil, the ultimate potential punishment for the perpetrator, if any, depends very much on where you live and how the image was obtained. Before any of this analysis takes place, the first and most important steps are to 1) get the image(s) taken down as quickly as possible, while 2) preserving any evidence that may be necessary in a criminal and/or civil action. Almost counterintuitively, the second step should be addressed first.
No matter how painful or humiliating, the evidence of what was done must be captured and preserved. To do that, you can save the webpages as PDFs, or take screenshots of the entire page(s). It is also a good idea to print out all relevant pages and keep them in safe location. If there is video footage, download the entire video to a secure hard drive. This should take very little time, and should be done immediately. At this point, you need to decide if you wish to enlist the services of a lawyer.
The reason to make this decision now is that, in addition to contacting the web host and demanding the images be removed, the website needs to be put on notice that you are taking legal action, and that you are requesting that they provide you with, or preserve, the relevant material and information regarding the poster and his or her IP address. The reason this is crucial is that some websites may not keep data for very long, and the proper notification may save evidence that would be essential at trial. You certainly can, and should, make these demands on your own if you choose not to engage legal representation, however a skilled attorney will have both an immediate understanding of the law as well as the ability to strike the correct tone in order to get the images removed as soon as possible. For example if you took the pictures yourself (a "selfie") or were under 18 when the image was produced, a lawyer should be able to have the images removed within 48 hours.
Once the images have been taken down, it is important to evaluate the next legal steps. The first issue is whether or not the non-consensual publication of the images was a crime, and whether it should be reported to the police. The answer is very much location and fact-specific. Initially, it must be determined which state's law applies. At the moment there is no specific statute criminalizing revenge porn in New York; conversely, New Jersey is one of only two states that has enacted a statute criminalizing this specific behavior. Other states, including New York, have existing statutes which would possibly address some types of behavior depending on the individual facts. Questions that are highly important can be whether the images were given, taken surreptitiously or hacked or stolen, whether the images were produced before you were 18 years old, whether you were threatened with their publication or whether you have a restraining order against the individual who published the images.
Even if criminal charges are not an option, you may have a civil cause of action. The specific type of lawsuit would depend on the appropriate jurisdiction in which to bring the case. New York, for example, has very narrow statutory civil rights laws regarding privacy. A creative lawyer, however, analyzing the particular facts, may be able to file a cause of action for defamation, intentional or negligent infliction of emotional distress, tortious interference with contract/prospective economic advantage or a prima facie tort. It is also important early on, not only to assess the potential success of a claim, but to identify the proper parties to name in the lawsuit. While the "deepest pockets" are certainly those of the web hosts or Internet Service Providers, federal law, 47 U.S.C. § 230, has created an almost blanket immunity for these corporate individuals. The more appropriate defendant would be the actual individual responsible for publishing the images. Many victims, concerned that the individual in question may not have significant assets, are hesitant or unwilling to pursue available civil action in the face of what they fear will be significant legal expense.
Civil actions, particularly in cases such as these, are particularly challenging and complex, and navigating through these murky waters may feel daunting or even impossible. If you have been a victim of revenge porn, the most important thing is not to let the shame, anger and feeling of powerlessness immobilize you. Whether it be with a lawyer, or on your own, you must act quickly, confidently and decisively.
James Healy, an associate attorney at Sullivan Brill, LLP substantially assisted in the researching and drafting of this article. If you want to email the authors directly, feel free to write to: steven.brill@sullivanbrill.com or james.healy@sullivanbrill.com You can also follow Sullivan Brill, LLP on their Facebook page for helpful legal articles.