The Troublesome Phenomenon of Revenge Porn

History may always move forward, but not every step forward is an advance in civil society. Consider the modern-day phenomenon colloquially known as “revenge porn”—the on-line posting of intimate photographs of a former wife or girlfriend done to humiliate the subject of the image.[REF] The boorish phenomenon of posting these photographs on the Web is likely the result of several factors: the advent of digital cell-phone cameras, the ease of access to the Internet, the modern practice of intimate partners sharing risqué photos, and the harsh emotions generated by the breakup of a serious relationship.[REF] Yet, unlike the daguerreotypes or Polaroids of days past, Internet photographs are widely available and may last forever. As I have noted elsewhere:

Like an elephant, the Internet never forgets. Information potentially lives in “the cloud” forever. That is good if you are looking for an obscure music video or film clip. That is bad if your high school posts your freshman-year class photo. That is horrible if someone posts a compromising picture of you. Internet images have the half-life of Tellurium-128. It also is difficult, if not impossible, to delete information from the Internet, even with the consent of the party who posted it and the help of the site on which it sits, because the zeroes and ones may exist in a cache owned by a search engine such as Ask, Google, or Yahoo! Information also may reside in the server of a firm that collects and sells customer information. In fact, some companies, such as Spokeo or DoubleClick, specialize in “data aggregation”—that is, the scouring of social media websites, such as Facebook, for personal information about users and the sale of that information to a company that uses it to offer you particular goods or services. In an age when 2.8 billion people are connected to the Internet and “you are what Google says you are,” the permanence of unflattering information about us on the Internet poses a troubling prospect for us all.

The ability for someone to start life over, to reinvent or reboot oneself, offers us a valuable opportunity for a fresh start. It enables us to avoid being chained to our mistakes like Jacob Marley. In order for that opportunity truly to be effective, however, we must be able to leave some of our past behind. Today, that is a difficult feat to accomplish in the United States, given the First Amendment (although it soon may become less difficult in the European Union). Information on the Internet is available for a far longer period than when only the spoken or written word could damage our reputation or disclose our private affairs. The permanence of information on the Internet carries a past insult or injury forward, potentially forever, making an original sin into an eternal one.

American law has never recognized a “right to be forgotten” in part because, before the last few decades, no such right was ever necessary. Before the digitalization of photography and the advent of the Internet, the transaction costs of sharing information limited its distribution to those few recipients that average people chose themselves. Only celebrities—presidents, movie stars, professional athletes, and the like—were at risk of having their everyday exploits and activities photographed and shown to the world. But that day is gone forever. Scott McNealy of Sun Microsystems once stated that “[y]ou already have zero privacy. Get over it.” Many observers, regretfully, agree with him. We may not yet reside in Marshall McLuhan’s “global village” (or in George Orwell’s Hades-like version of it), but the ubiquity of camera-equipped cell phones and the ease of uploading photographs or videos onto the Internet means that now we all face the risk of being made into a celebrity, like it or not. What happens in Vegas may stay in Vegas, but not what appears on Facebook.[REF]

This pernicious practice is not a rare phenomenon. A December 2016 study indicated that it affects one in 25 Americans, mostly people in the 15–29 age bracket and more often women than men.[REF] Whenever it does occur, revenge porn can inflict serious emotional harm on its victims, such as a debilitating loss of self-esteem, crippling feelings of humiliation and shame, discharge from employment, and verbal or physical harassment. In some cases, the victim has even considered or committed suicide.[REF]

Initially, victims asked websites to delete these photographs and, if they refused, sued the website operator. For the most part, those lawsuits have been unsuccessful. The principal reason why is that Section 230 of the Communications Decency Act of 1996[REF] provides that a website cannot be treated as “the publisher or speaker” of material posted online by someone else.[REF] As a practical matter, Section 230 grants a website immunity from damages or injunctive relief for posting revenge porn if the website posts it without editing or revising whatever is posted.[REF] Victims of revenge porn therefore found themselves unable to keep from feeling humiliated before the world.[REF]

State and federal government officials have taken some steps to address this misconduct. Some states have enacted criminal laws to prohibit revenge porn.[REF] The federal government could prosecute an individual under the Computer Fraud and Abuse Act[REF] if he hacked into someone else’s computer to obtain photos.[REF] In 2015, the Federal Trade Commission filed a complaint against one purveyor of revenge porn under Section 5(a) of the Federal Trade Commission Act,[REF] alleging that he had deceived women into sending him intimate photos and then referred them to a different website that he controlled, “where they were told they could have the pictures removed if they paid hundreds of dollars.”[REF] Finally, to bolster federal efforts to address this problem, several Members of the House of Representatives from both parties introduced a bill in 2016 that would have made the publication of revenge porn a federal crime.[REF]

Yet those developments do not guarantee relief for every victim, or perhaps even most. The government cannot bring criminal charges or civil actions against every violation of law and must therefore prioritize its use of limited enforcement resources. What is more, no one can force the government to take action against an alleged offender, because “a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.”[REF]

The victims of revenge porn, however, do have an opportunity for relief. Tort damages are the traditional remedy for personal injuries, such as an invasion of one’s privacy or the besmirching of one’s good name,[REF] and victims can pursue state-law tort suits for damages against the individuals responsible for posting revenge porn photographs. Of course, tort suits have no guarantee of success, and, to date, tort actions in such cases have had mixed outcomes.[REF] In addition, defendants will argue that the First Amendment’s Free Speech Clause permits them to display, on the Internet or elsewhere, whatever photographs they lawfully possess that accurately depict whatever was in the viewfinder, regardless of the embarrassment that the picture may cause a subject. The courts have yet to resolve those issues.

Properly defined, a criminal statute and civil tort law should be able to overcome a defense based on the Free Speech Clause. In fact, that defense should not pose a serious hurdle. The government should be able to bring a criminal prosecution or civil action against the party responsible for placing such images on the Internet, and a victim of revenge porn should be able to obtain damages against that person for his tortious conduct.

The Central Issue in Revenge Porn: Betrayal

A victim of revenge porn could seek relief under one or more of several traditional tort theories, such as invasion of privacy, “false light” portrayal, defamation, and intentional infliction of emotional distress.[REF] Some scholars have also urged the courts to provide a tort remedy for a breach of an express or implied assurance of confidentiality in connection with otherwise private information.[REF] Despite the outrageousness of the conduct at issue, however, a woman might have difficulty proving her case. The problem for a woman is that consent is a defense to each of those torts, and a defendant will argue that he obtained the photographs with her consent because she allowed him to photograph her or because she sent him a “selfie.”[REF] Nonetheless, whatever may be the result in other cases in which consent is raised as a defense—contact sports or magazine centerfolds, for example—there is a feature of this course of conduct that should enable a plaintiff to recover: the element of betrayal.

American courts have been reluctant to impose tort liability for breaching a promise. Part of the reason is that the claim sounds more in contract than in tort; part is that American society has operated on the presumption that a secret once disclosed is no longer entitled to legal protection; and part is that the Free Speech Clause generally entitles someone to disclose whatever information he lawfully possesses. Yet some relationships convey an implicit promise of confidentiality, an assurance that certain information “will go no further” than the recipient, an assurance that the courts have protected by offering an injured party damages for the disclosure of personal information. For example, courts have ruled that physicians and banks can be held liable for disclosing patient or depositor information.[REF] American society also has an expectation in the privacy of communications sent through the mail.[REF] The law of evidence recognizes a privilege for certain types of communications, such as ones between spouses or between patients and their physicians.[REF] Some scholars have argued, moreover, that it is important to deter a breach of a confidential relationship or exchange by providing a tort law remedy.[REF]

Those principles are relevant here because the only feature that distinguishes revenge porn from the tort remedies for other types of disclosures is this: The person who publishes revenge porn breaches an implied promise of confidentiality that a photograph one intimate partner shares with another will never be disclosed to anyone else.[REF] As I have said elsewhere:

Betrayal is the key to the proper legal analysis of revenge porn. The essence of revenge porn is the Internet-posting of nude photographs of a former intimate partner for the purpose of subjecting her to public humiliation. That conduct is accomplished, however, through a betrayal of the trust that the victim had in her partner that he would never publicize the photographs. Online posting of the same surreptitiously taken photograph would certainly constitute the offensive publication of private details of an individual’s life for which the Restatement (Second) of Torts would provide a damages remedy. The only difference between that scenario and the one characteristic of revenge porn is that the person who published the photograph violated a tacit agreement between the parties over what could be done with it. Taken, yes; possessed, yes; publicized, no. The breach of that assurance of confidentiality is what tort law should protect.[REF]

Various scholars have recognized the legitimacy of providing a remedy for privacy violations. As Professor Daniel Solove has explained:

[D]isclosure and breach of confidentiality cause different kinds of injuries. Both involve revealing a person’s secrets, but breaches of confidentiality also violate trust in a specific relationship. The harm from a breach of confidentiality, then, is not simply that information has been disclosed, but that the victim has been betrayed.[REF]

Professor Jeffrey Rosen agrees:

If individuals cannot form relationships of trust without fear that their confidences will be betrayed, the uncertainty about whether or not their most intimate moments are being recorded for future exposure will make intimacy impossible; and without intimacy, there will be no opportunity to develop the autonomous, inner-directed self that defies social expectations rather than conforms to them.[REF]

Recognizing a breach-of-confidentiality tort for revenge porn is a reasonable way to deal with the competing privacy and free speech interests. A victim would need to prove that she gave a photograph to someone else with the expectation that the recipient would not disclose it to third parties. It is highly unlikely that the parties would reduce their agreement to writing, and there may not even have been an express demand for a promise of confidentiality. But neither possibility should foreclose a victim from proving that she received an implied promise as the quid pro quo for giving her partner a photograph. Accordingly, if a plaintiff can establish an implied promise of confidentiality, the online publication of an intimate photograph constitutes the type of betrayal for which tort law should provide a remedy.[REF]

It is important to remember that the betrayal at issue here is not a simple breach of a commercial agreement. The practice is loutish; the speech interest (if any) is trivial; and the harm is real, can be severe, and always will be permanent. Mark Twain eloquently described the injury that can result from the disclosure of intimate information when he wrote about the unconsented-to publication of a love letter:

The frankest and freest and privatest part of the human mind and heart is a love letter; the writer gets his limitless freedom of statement and expression from his sense that no stranger is going to see what he is writing. Sometimes there is a breach-of-promise case by and by; and when he sees his letter in print it makes him cruelly uncomfortable and he perceives that he never would have unbosomed himself to that large and honest degree if he had known that he was writing for the public.[REF]

Add to the mix the proposition that “A picture is worth a thousand words” and you can start to get an idea of how much damage this practice can generate.

The Free Speech Clause

Anyone who posts intimate photographs on the Internet will undoubtedly defend against a criminal prosecution or tort suit by claiming that his conduct is protected by the First Amendment’s Free Speech Clause. The argument will start from the premise that publication on the Internet is entitled to the same First Amendment protection that the owner of a bookstore or a movie theater would receive for his displays.[REF] Then he will argue that the government cannot deem simple depictions of nudity as being “obscene”[REF] and cannot forbid the Internet publication of “indecent” photographs.[REF] Next, he will mix in the contention that the First Amendment protects the right to publish lawfully obtained information.[REF] He will conclude by maintaining that it makes no difference whether the federal government or a state makes it a crime or a tort to post revenge porn because either sanction violates the First Amendment, given its censorious effect.[REF] The result, a defendant will argue, is that revenge porn is constitutionally protected speech despite its offensive character.[REF]

In response, it will be argued that revenge porn should receive little, if any, First Amendment protection.[REF] The argument would be that revenge porn does not inform public debate and is not a legitimate form of artistic self-expression. “The boorish practice of revenge porn inflicts harm on its victims without any corresponding social benefit.”[REF] Revenge porn is the photographic equivalent of coprolalia. It has no positive societal benefit and humiliates its victim. That type of speech, as Professor Daniel Solove has argued, “should not be treated the same as disclosures made to educate or inform.”[REF] It would therefore belittle the First Amendment to afford revenge porn anything more than de minimis protection—protection that is more than outweighed by the state’s interest in protecting women against the harm that it causes.

Nonetheless, a plaintiff might have a difficult time persuading the Supreme Court of the United States to exclude revenge porn entirely from protected “speech.” In 2010, the Court refused to treat the visual depiction of horrific forms of animal cruelty as categorically unprotected speech. In United States v. Stevens,[REF] the Court was forced to decide whether a federal law prohibiting the interstate distribution of depictions of animal cruelty could withstand a First Amendment challenge. The relevant statute, Section 48 of Title 18 of the United States Code,[REF] made it a crime to create, sell, or possess so-called crush videos—videotape depictions of the intentional torture and killing of defenseless small animals such as dogs, often by women barefoot or wearing high heels, accompanied by the helpless squeals of the animals.[REF] The Court found “startling and dangerous” the government’s argument that the courts could and should engage in what the Court described as a “highly manipulable” categorical balancing test directing the courts to weigh the pros and cons of particular types of speech.[REF] Stevens therefore protected information that barely makes any material contribution to any conceivable legitimate interest, let alone an important matter of legitimate public or private concern. The upshot is that the Court might be unlikely to place revenge porn entirely out of bounds or to rank it at the bottom of the pyramid of free speech interests.

Fortunately, the courts would not need to resolve that issue, because there is another way to look at this problem, one that allows victims or the government to attack revenge porn without trespassing on the Free Speech Clause and without forcing the courts to address the issues noted above.

Go back to what is the heart of revenge porn: betrayal, accomplished by the online posting of an intimate photograph that the victim reasonably believed would never be made public. Of course, it is most unlikely that an intimate couple would formalize their shared understanding that such a photograph is for the recipient alone. But imagine for a moment that they did. After all, it is not unheard of for actresses or models to negotiate a right to veto the use of particular photographs or film sequences in order to avoid the public display of complete or partial nudity. Those scenarios, of course, involve the depiction of a woman in a commercial setting, such as a film, but the principle is the same in noncommercial cases. Commitments can be made even when no money changes hands. As the Restatements (Second) of Contracts provides, “A promise is a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made.”[REF] An enforceable commitment can also exist without being stated expressly or inscribed in a document. A promise “may be inferred wholly or partly from conduct.”[REF]

Add together those principles, and what you have in the case of revenge porn is this: A husband or boyfriend can agree not to disclose a photograph to anyone else; that agreement can be express or implied; and disclosure can violate that agreement, leading to an action for damages or (less often, but not by any means legally impermissible[REF]) a criminal charge. What would give rise to liability in that setting, and what would take such a case out of the ordinary free speech playing field, is the violation of the parties’ implicit nonpublication agreement.[REF]

Directly on point is the Supreme Court’s 1991 decision in Cohen v. Cowles Media Co.[REF] Dan Cohen was associated with a certain gubernatorial candidate. He wanted to provide the Minneapolis Star Tribune newspaper with information about a rival candidate but wished to remain anonymous. He and the newspaper worked out an agreement: He gave the newspaper the information in return for its assurance of confidentiality. Afterwards, however, the newspaper went back on its word and outed Cohen as its source. After losing his job, Cohen sued the newspaper for damages.[REF] The Minnesota Supreme Court decided that Cohen stated a claim for damages under the Minnesota doctrine of promissory estoppel,[REF] but it also ruled that the Free Speech Clause denied Cohen the right to recover for the newspaper’s conduct.[REF] The Supreme Court of the United States granted review and reversed.

The Court started by noting that publishers are subject to generally applicable, content-neutral statutes such as the copyright laws,[REF] the labor laws,[REF] the antitrust laws,[REF] and the tax laws.[REF] Those statutes, the Court noted, can be applied to the media in the same manner that they govern everyone else.[REF] The same principle, the Court held, applies to state laws governing promissory estoppel. That body of law does not single out the media or any particular type of speech for special, unfavorable treatment. It applies to everyone and “simply requires those making promises to keep them.”[REF] That result, the Court held, does not infringe on freedom of expression. Because “[t]he parties themselves…determine the scope of their legal obligations,” any restrictions that may be placed on the publication of truthful information are “self-imposed.”[REF] In addition, application of promissory estoppel doctrine would not deter third parties from engaging in protected forms of expression. Any deterrent effect would be “no more than the incidental, and constitutionally insignificant, consequence of applying to the press a generally applicable law that requires those who make certain kinds of promises to keep them.”[REF]

Cowles Media thus shows that, because parties may contract away their free speech rights, imposing liability for revenge porn involving betrayal would not violate the First Amendment.[REF] Whatever the merits may be of the argument that revenge porn should receive little, if any, free speech protection, the Supreme Court’s decision in Cowles Media enables the government to afford a victim protection through the criminal law or a damages remedy under tort law:

[H]ere, as in Cowles Media, tort liability would not rest on any basis that threatens government censorship because of the messages or ideas contained in a photograph. A tort or criminal offense protects only against the publication of private aspects of a person’s life that a reasonable person would find offensive and that breached an implicit promise of confidentiality. Accordingly, a Playboy model could not recover damages for the magazine’s use of her photos because they were taken with the clear understanding that they would be published. Limiting recovery in that manner—to instances in which a plaintiff can prove that an offensive publication betrayed a promise—would not jeopardize legitimate free speech concerns. Here, as in Cowles Media, tort liability would simply encourage people to keep their word.[REF]

Conclusion

Just as automobiles can be used as ambulances or getaway cars and firearms can be used for self-defense or murder, the Internet can be used for good or ill. The phenomenon of revenge porn is an example of the latter. Ironically, a defendant charged with the publication of such low-rent “speech” is likely to invoke the majestic principles underlying the First Amendment’s Free Speech Clause as a defense to criminal or civil liability. His argument would be that the First Amendment protects an individual against civil or criminal liability for publishing a lawfully obtained image accurately depicting the photographer’s subject, regardless of how unflattering the photograph may be or the effect that publication may have on the subject.

But intimate photographs are shared under circumstances giving rise to an implied agreement of confidentiality between the parties. That fact is critical because the Free Speech Clause does not shield a recipient against a broken promise not to share a photograph with others. Imposing criminal or tort liability on someone who breaches an agreement of confidentiality will not chill protected speech, because doing so is not a form of actual or threatened censorship. It is only an effort to give the government or victims a remedy for the harm that it causes.

—Paul J. Larkin, Jr., is a Senior Legal Research Fellow in the Edwin Meese III Center for Legal and Judicial Studies, of the Institute for Constitutional Government, at The Heritage Foundation.