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/.
                   [3].              Id.
[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/.
                   [12].            See Citron & Franks, supra note 2.
                   [13].            See id.

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