The growth of interactive internet sites over the past couple decades has lead to the blossoming of an industry specializing in user-generated pornography. This phenomenon has become known as “Porn 2.0,” and has provided users an outlet to post photos and videos not only of themselves, but also of people who have not consented to the online distribution of these images. Over the past few years, this unintended consequence of user-generated pornography has morphed into a genre all unto itself, spawning websites that specialize in the publishing of pornographic audiovisual material of unsuspecting subjects. This has become known as “revenge porn” and has resulted in countless reputations sullied over the unauthorized posting of naked pictures.

Many groups have rallied to get support to end this practice, and have proposed and passed laws that aim to squash out this dark corner of the internet. However, much of the conversation thus far has revolved around the enactment of state criminal statutes, modeled after the one passed in California in late 2013. These statutes seek to punish the poster by imposing fines and misdemeanors, and let the website escape prosecution. In fact, the increased notoriety may even lead to a greater revenue due to advertising revenue tied to web traffic for these sites, and a wider audience would result in more harm to the victim.

Instead, reform should focus on the medium by which these posters can act, using copyright law to stymie and make operating these websites excessively unprofitable. Under copyright law, the taker of a photograph retains copyright in the photo, and can control its dissemination. Violations of copyright can result in statutory damages of up to 150 thousand dollars.

Yet current law shields websites from any copyright liability. The Communications Decency Act of 1996 effectively grants the website operators immunity from liability for third-party content. Specifically exempted from this blanket immunity provision is intellectual property, though intellectual property is subject to the notice and takedown requirements of the Digital Millennium  Copyright Act. Thus, provided that the website operators take down photographs, taken by the victim, without excessive delay, the combination of these two acts allows the websites to operate with impunity.

In order to reform this system, it is not necessary to rewrite these laws. Changing these broad statutes would upset years of legal precedent, and has the potential for adverse effects in other areas of the internet. Instead, secondary liability could be imposed that would allow the victims to present tort claims for the wrongs they suffered. The model for secondary liability in the copyright context could be MGM v. Grokster, 545 U.S. 913 (2005). That case involved the imposition of secondary liability on a website that operated to distribute music in the wake of the fall of Napster. According to that holding, secondary liability is predicated upon two elements: the defendant must have knowledge of the third party’s infringing activity, and it must induce, cause, or materially contribute to the infringing conduct.

Secondary liability has the potential to accomplish two goals. First, establishing this tort could allow victims to recover tort damages, including pain and suffering, from the actual monetary beneficiaries of their pain. This would establish a much more generous recovery than is currently allowed by mere copyright law, and could go a long way to putting the victim back in her place before the injury. Second, the type of harm would be similar across different victims, and a class could be formed to recover for multiple victims in one suit. This could incentivize lawyers to pursue these actions, and could bring sufficient judgments to shut down the sites. Ultimately, a solution could be reached that would take these websites far from the public eye, lessening the pain for future victims and removing this scrooge from forefront of the internet.

Phil Houten

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