Revenge Porn: What Rights Exist?
Jonathan Gomer
Advancements in technology as well as the
ability for individuals to disseminate pictures more easily then ever before,
has resulted in a new type of pornography to emerge.[1]
The term for this rising form of nonconsensual pornography is known as revenge
porn[2].[3] Revenge
porn—often times called nonconsensual pornograph—is the distribution of
“sexually graphic images of individuals without their consent.”[4] These images are often taken by the victims
themselves[5]—and are almost always—“originally obtained
within the context of a private or confidential relationship”[6]
Unfortunately, there are very few laws criminalizing this new form of online
shaming, due to the numerous repercussions those victims that come forward
face.[7] This coupled with the general public’s
response of victim blaming, has kept this crime relatively in the shadows.[8]
Revenge porn is not only limited to the
Internet, it affects its victims in the real world as well. Often times
ruining its victim’s lives, affecting their personal as well as work
relationships, blemishing the victim’s reputation, affecting relationships with
one’s family, and causing the loss of future academic—as well as—job prospects.[9] World governments have begun to take notice of
this increasing problem and have begun passing legislation criminalizing
revenge porn.[10] On the other hand, the United
States has been slow to follow. Even though some states in the United
States have enacted laws criminalizing revenge porn, those who post revenge
porn to websites have not been prosecuted for disseminating this type of
pornography, but instead for other crimes such as hacking, conspiracy, and
identity theft.[11]
Even though some states have begun to enact
legislation with stricter consequences for those involved in disseminating
revenge porn, criminalization in and of itself is simply not enough.[12] This is because revenge porn legislation only
punishes the actor who disseminates these sexual images to the Internet.[13] What remedy do these victims—whose private
images are now available for the world to see with a simple Google search—have?
The American legal system has yet to find a
solution to this problem, however if we look to the European Union we may find
a solution in the form of the right to erasure, formerly known as the right to
be forgotten. This right, which is embodied in Article seventeen of the
European Union’s Data Protection Directive proposal may be the solution that
the victims of this crime in America have been yearning for. This paper
will: Deconstruct the right to erasure, found in Article seventeen of the
European Union’s Data Protection Directive proposal, and its applicability to
revenge porn; discuss the current revenge porn legislation and its many
shortfalls; address the constitutional hurdles that will be faced trying to
implement the right to erasure to revenge porn in the United States; and
propose a method of bypassing any constitutional hurdles that may hinder the
implementation of a similar revenge porn takedown remedy in the United States.
[1]. See Casey
Martinez, An Argument for States to Outlaw ‘Revenge Porn’ and for
Congress to Amend 47 U.S.C. §230: How Our Current Laws Do Little to
Protect Victims, 14 Pitt. J. Tech. L. & Pol’y 236 (2014).
[2].
Danielle Keats Citron & Mary Anne Franks, Criminalizing Revenge
Porn, 49 Wake Forest L. Rev. 345, 346 (2014). “Revenge
porn, also called cyber revenge, is the act of posting sexual photos of an ex
lover online for vengeance. The photos were typically exchanged
consensually over the course of a relationship and meant only for the other
person.” Heather Kelly, New California ‘Revenge Porn’ Law May
Miss Some Victims, CNN Tech., (Oct. 3, 2013, 3:01 PM),
http://www.cnn.com/2013/10/03/tech/web/revenge-porn-law-california/.
[4].
Citron & Franks, supra note 2, at 346.
[5].
Kelly, supra note 2. “Up to 80% of revenge porn victims
had taken the photos of themselves, according to a recent survey by the Cyber
Civil Rights Initiative.” Id.
[6].
Citron & Franks, supra note 2, at 346. These images
can be obtained without consent, often times from hidden cameras or obtained
illegally through hacking. Id. See also Lawrence
Siry, Forget Me, Forget Me Not: Reconciling Two Different
Paradigms of the Right to Be Forgotten, 103 Ky. L.J. 311, 336
(2014).
[7]. See Citron
& Franks, supra note 2, at 347–48.
[8]. See id.
[9]. See
id. “[In a] recent study, . . . colleges and universities [stated
that they] use social networking websites—a medium that commonly features
primary-and secondary-sexting images—to help evaluate applicants.”
Elizabeth M. Ryan, Sexting: How the State Can Prevent a Moment of
Indiscretion from Lending to a Lifetime of Unintended Consequences for Minors
and Young Adults, 96 Iowa L. Rev. 357, 363 (2010).
[10].
Juan Carlos Rodriguez, Israel Criminalizes ‘Revenge Porn’ in New Bill, Law360 (Jan.
7, 2013, 6:05PM),
http://www.law360.com/articles/499212/isreal-criminalizes-revenge-porn-in-new-bill.
Israel “passed a law that makes putting a sex tape online without the consent
of all the involved parties punishable by up to five years in prison.” Id.
[11].
Jessica Roy, Revenge Porn King Hunter Moore Was Arrested, But Not for
Hosting Revenge Porn, Time (Jan. 27, 2014),
http://newsfeed.time.com/2014/01/27/revenge-porn-king-hunter-moore-was-arrested-but-not-for-hosting-revenge-porn/.
