Your Mom and the Courts Agree: Naked Online Pix are Not OK

By: Ifrah Law

Since the 1990s and the rise of the Internet and social media, each one of us has become increasingly aware of the risks and dangers of unwanted posts and how fast a “discreet” image can go viral. The development and evolution of the Internet has brought with it a host of novel legal issues, from the worldwide threat of cyber bullying to disgruntled employee posts, a flippant press of a button can mean tremendous consequences and legal challenges for many involved parties. Combine the viral nature of an image with the fuel of raw emotions over a breakup with a spouse or former lover and it is a recipe for disaster!

In a case that is considered the first of its kind, a website operator was found criminally liable for identity theft and extortion by a California state jury last week. The defendant operator Kevin Bollaert owned the website YouGotPosted.com, which permitted jilted lovers to submit nude pictures of their exes in order to publicly humiliate them. The site would identify the victim by name and also include the victim’s phone number next to the photo. On a sister website set up by the same operator, ChangeMyReputation.com, the victims were asked to pay up to $350 in order to have the photo removed. Between December 2012 and September 2013, less than one year, the site put up over 10,000 posts.

“Revenge porn” sites like this one permit the online posting of nude and sexual photos of people, by its nature mostly women, whose exes post the images to try to humiliate them. Images can also be easily picked up by other websites, so even if a person succeeds in getting images removed from one site, it may be difficult or impossible to remove them completely from the Internet. So, of course this sounds like it would clearly be illegal? Not so. Perhaps surprisingly, most states do not make it a crime to post people’s photos or personal information online without their permission. Many revenge porn sites have popped up in recent years and have brought national attention, as states scramble to enact laws or amendments to existing laws to help the defenseless victims. With the quick rise of revenge porn, states have often used laws already in existence to prosecute those accused of committing revenge porn, such as laws against disseminating pornography or laws protecting privacy. Even so, many current laws regarding invasion of privacy, harassment or disorderly conduct were enacted long before revenge porn was contemplated or became a rising concern. Oftentimes, a loophole makes it difficult to prosecute because the victims don’t own the photographs in which they appear or have voluntarily disseminated the photo without the intention of it going viral. It is for this reason that in the past few years, sixteen states have enacted criminal revenge porn laws, and there is legislation pending in over twenty additional states.

The case against Bollaert was the first conviction following California’s revenge porn bill, signed into law in October 2013 by Governor Jerry Brown. The law amends the state’s disorderly conduct law and makes it a crime to post nude photos of another online without permission and with intent to publicly shame the subject. However, this law as first drafted did not include photos taken as “selfies” but only those taken by another party. To remedy this, the law was subsequently amended, which will take effect in July of this year. Unlike other revenge porn sites, though, YouGotPosted.com permitted users to share personally identifying information about the photo’s subject. Bollaert was therefore prosecuted for identify theft and extortion, not under the revenge porn law. Bollaert faces up to 20 years in state prison when he is sentenced on April 3.

So, is this case unique due to the egregious nature of the facts, or should website operators beware of government’s tightened grip on website content? I think the answer is both. The facts are egregious but far from uncommon and increasingly more frequent. As devious players contemplate use of the Internet in unprecedented ways, state laws are feverishly attempting to catch up to evolving technology. While many object to such laws based on First Amendment free speech rights, it seems that governments are in fact taking stricter control over website content, with new laws and amendments pending in almost half the states in order to close the loopholes currently existing on this issue. Even so, there is a lesson to be learned to prevent humiliation and the time and expense of litigation – for all of those who leave their smart phones next to their beds, think twice before undressing and snapping!