In the wake of the iCloud hack of the pictures of the (very attractive) nude celebrities, it was announced that lawyers had contacted Apple threatening to sue. ‘Cause that’s what lawyers do.’ They sue. Or they threaten to sue. But for what?
In the case of Apple, the lawsuit would likely be for unfair and deceptive trade practices (under both California and FTC law) for failing to adequately protect and secure these naked pictures. But what about the liability of those who obtain, transfer and post (or threaten to post) these pictures?
That’s where the situation gets murky.
There is an entire marketplace for the collection and posting of sexually explicit pictures, not just of celebrities, but of other people as well. These images are typically posted without the consent of the person depicted in the image, either as pure revenge, or to extort money or something else from the victim. In many cases, the poster is an ex boyfriend or ex husband (and in rarer cases ex girlfriend or wife) or some other “jilted” or angry suitor or potential suitor.
In other cases, hackers obtain unauthorized access to files (like the iCloud) and either post or threaten to post these images without the consent of the victim. In both cases, the attackers will frequently post personal information about the victim together with the intimate photographs. This can include the victim’s name, address, telephone number as well as links to their social networking profiles (e.g. Facebook, LinkedIn, Pinterest, Twitter.)
In some cases, the poster or the revenge porn site itself will charge a fee to either not post the images or to take them down. In the most egregious cases, posters have invited others to visit and sexually assault the victim – posting to sexually explicit websites in the name of the victim, and explaining that the victim has a “rape fantasy” and inviting strangers to the victim’s house to fulfill this fantasy.
Pretty sick stuff.
So what’s the recourse?
Like every legal question, the answer is – it depends. Every circumstance is different.
The gut reaction is that these “crimes” and “torts” are in the areas of “invasion of privacy” or “extortion.” But the invasion of privacy laws deal with “peeping Tom” situations, and until very recently, did not deal with a situation where the “victim” took the pictures herself, or allowed them to be taken.
That’s the nature of privacy. What is acceptable in one situation (the boudoir) is neither intended to be used or acceptable in another context.
Intrusion Into Seclusion
A common law tort would be “Intrusion Into Seclusion” or “Intrusion into Private Matters” which would involve proof of an intentional intrusion, physical or otherwise; into a person’s “private life, seclusion or solitude”; that would be highly objectionable to a reasonable person; and it is the cause of an adverse effect (harm, embarrassment, lost job, etc.) on the person. But not all States recognize this common law tort. And the question might be raised whether the “intrusion” occurred when the picture was TAKEN or when the picture was POSTED. Nevertheless, this would likely provide a civil remedy, at least partially because of the “ick” factor.
But consider a different situation. A man trolling the web for women sends nude or semi-nude pictures to them, either solicited, unsolicited, or “semi-solicited” (“would you like a picture???”) The woman, offended, then reposts the picture to a “revenge porn” site, with the explanatory note, “watch out for this creep” and provides the “creep’s” name, address, etc. Would THAT be an “Intrusion Into Seclusion?” Context is Everything.
Intentional Infliction of Emotional Distress
Another possible cause of action is the Intentional Infliction of Emotional distress. That is that the poster posted the pictures with the intent (and having the effect) of inflicting either regular or severe emotional distress on the victim. Sounds about right.
Revenge Porn Statutes
In response to the phenomenon of revenge porn, various jurisdictions have passed specific laws to make it a crime to knowingly and intentional distribute or post sexually explicit images without the consent of the person depicted in them.
Legislation has been enacted in Arizona, Colorado, Georgia, Hawaii, Idaho, Maryland, Pennsylvania, Virginia and Wisconsin to make the distribution of these images without consent illegal.
Sometimes.
You see the revenge porn sites themselves have statutory immunity under the Communications Decency Act, and are not required to remove the revenge porn. Under the CDA a website operator, ISP, Search engine, or any other party not directly affiliated with the poster is not considered the “publisher” of the items that a third party posts to their site. This includes other kinds of spite sites, like “don’t date him .com” or “mugshot” .com. This is true even if the site charges money to have the data removed. They are not a publisher.
So from a victim’s perspective, they can go after the poster (if they can find them) or the hacker (under computer crime laws), but what they really want is to take down the pictures. And that’s not so easy.
Another problem with these laws is that they make it a crime to disseminate or post these nude images without the consent of the victim, but not to threaten to do so. Often it is the threat, which is the problem. They don’t require the images to be taken down, don’t impose any liability for not taking them down, and don’t empower the victim to sue for damages or to get the images taken down. So if you know who posted the pictures, and you know where to find them, and you can prove that they are the ones who posted them, and you can convince a police department to do something about it, you can get them arrested but can’t get the images down. Not a great remedy.
Copyright Law
Perhaps the best way to deal with sensitive intimate images online without consent is to forget the fact that they are sensitive intimate images, and just remember that they are images posted online without consent.
We do a lousy job protecting privacy. We do a much better job protecting property.
Instead of thinking of these pictures as intimate and embarrassing pictures of real people who might suffer emotional harm – something the law doesn’t seem to care too much about – think of these as pictures of small birds, donkeys or cats. Copyrighted pictures. Intellectual PROPERTY. The posting of these pictures constitutes an infringement of the photographer’s property rights. That gets you into federal court, gets you injunctions, gets you out of the CDA and into the Digital Millennium Copyright Act (DMCA) and even may get you attorney’s fees.
So we can protect privacy as long as we forget that we are protecting privacy.
And that’s the problem. The real harm here is from the loss of the ability to control distribution of intimate thoughts, images, videos, and other information. But we can only deal with this under a property regime. But online privacy law is in its infancy. This too will evolve.