Academic journal article Northwestern Journal of Law and Social Policy

Fighting Back against Revenge Porn: A Legislative Solution

Academic journal article Northwestern Journal of Law and Social Policy

Fighting Back against Revenge Porn: A Legislative Solution

Article excerpt

I. Introduction to Revenge Porn

Revenge porn "involves the distribution of nude/sexually explicit photos and/or videos of an individual without their consent."1 This is not a new phenomenon. In the 1980s, Hustler, a pornographic magazine, solicited explicit images of "nonprofessional female 'models.'" 2 Though procedures were in place to prevent the nonconsensual publication of photographs,3 at least one woman had her photograph published without her consent in Hustler in the 1980s.4 "Realcore pornography" later became a pornographic genre in Usenet groups (the precursor to modern day internet bulletin boards) where users shared photographs and videos of ex-girlfriends, presumably without their subjects' consent.5

Today, revenge porn is typically associated with websites where persons' sexually explicit photos are posted without the subjects' consent, oftentimes with links to the subjects' social media profiles.6 By the beginning of the 2010s, Is Anyone Up? became the largest of such websites with over thirty million views per month in 2011.7 But it is not only laypersons being victimized; in 2014, a multitude of celebrities' nude photographs were stolen and published online.8

Current legal remedies are insufficient in protecting victims or punishing purveyors. Enforcement is especially weak when the victim is not a celebrity. 9 Furthermore, statutes that could protect victims face challenges for being overbroad and infringing upon the First Amendment.10 In fact, purveyors of revenge porn, ironically, may have immunity under the Communications Decency Act's "Good Samaritan" provision, which protects a provider of an interactive computer service from being treated as a publisher of that information.11 Beyond the statutory hurdles to recovery, the possible success of a claim may hinge upon which party took the photograph.12

While victims of revenge porn may feel as though they have been sexually assaulted,13 they bear unique challenges in recovery not faced by conventional sexual assault victims. Yet, the personal challenges a victim faces are not unique. Victims of inperson sexual assault may resort to self-harm,14 just as victims of revenge porn have resorted to self-harm.15 Sadly, others have even resorted to suicide.16

One pertinent issue regarding remedies for victims of revenge porn is society's perception of the victims. The onus is often placed upon the victim to protect him or herself. This parallels the victim-blaming phenomenon seen with in-person rape and sexual assault, further highlighting the difficulties in securing an adequate legal remedy when the assault occurs online. 17 These social issues negatively impact victims', particularly women's, ability to secure adequate remedies. There is a socialization of the fear of sexuality.

We have produced a generation of terrorized and terrified women. We are the generation of women who are afraid to be intimate, to explore our sexuality in safety, to take private pictures of our bodies, to walk to the parking lot, to dance. We are the women who won't walk alone after dark.18

This compulsion to distrust sexuality even in private makes it prohibitively difficult to find a remedy if the remedy itself requires publicizing that the victim is a sexual being.

Similar to what occurs with victims of in-person sexual assault, there are lasting effects for victims of revenge porn. For example, it is often difficult to remove one's image from the internet. A concerted effort to do so could result in the Streisand Effect: the unintended popularization of a juicy piece of online information that the would-be censor tried to scrub from the internet.19 And because revenge porn websites often link to a victim's social media accounts, being the subject of revenge porn can impact a victim's employment opportunities. There is an added impact of the social stigma in having sexually explicit photographs easily cataloged in a permanent online collection. …

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