Characters do the darndest things, especially when there is an emotional break-up involved. Which is why Bruce from Northern California had a question about revenge porn. Is it illegal? Just to be clear, that is a character in Bruce’s manuscript in progress we are talking about.
The short answer? Revenge porn can be illegal, depending on the state and, of course, the facts.
So what is revenge porn, anyway? Sometimes known as cyber exploitation or non-consensual pornography, revenge porn is the distribution of sexual images of another without their consent, often with the intent to humiliate, harass, or extort money.
Revenge porn has gained national attention over the last few years in many high-profile cases: like hackers posting nudes of celebrities (Scarlett Johansson, for example), or websites solely for the purpose of posting nude images to humiliate ex-lovers (IsAnyoneUp or UGotPosted which have been taken down after legal actions), or perpetrators exploiting nude images for financial gain or notoriety (like Mischa Barton, the former O.C. star who discusses on Dr. Phil a revenge porn plot by her ex-boyfriend).
Typically, revenge porn laws are used to prosecute those who distribute sexually explicit material to humiliate and intimidate their ex-lover. The overwhelming majority of cases are vindictive men who distribute sex photos of their ex-girlfriends. But the laws also cover non-consensual pornography distributed by hackers, teenagers bullying other students by forwarding nude photos of another, or people like Dharun Ravi, who posted webcam footage of his Rutgers roommate Tyler Clementi having sex with another man, after which Clementi killed himself.
So what does this mean for your plot? Revenge porn is certainly a timely topic, one of massive concern for adults in relationships gone bad, victims of hackers stealing content, or parents and their teenagers who freely send nude selfies in this techno-communication age. Often these types of actions cause horrendous damage to reputations and psyches. Some victims commit suicide. Some lose their jobs. Some lose friends and families. Lives can easily be ruined by one quick click.
If you use revenge porn in your plot, whether your protagonist is the victim of cyber exploitation, the perpetrator distributing the nude images, the prosecutor of such illegal acts, or a journalist caught up in an overbroad law, here is what you need to know about revenge porn laws.
In over half of the US, laws exist that make revenge porn illegal. In 2013, California was the first to enact such a statute (shocking, since California is not known for being progressive — wink, wink). The California statute requires: 1) someone distribute nude photographs or recordings of another person under circumstances in which the persons agree or understand that the image was to remain private; 2) the person intended the distribution of the image to cause serious emotional distress; and 3) the subject in the distributed image did indeed suffer serious emotional distress. Many other states followed suit, some of which, like New Jersey, extended the laws to cover the illegal distribution of sexually explicit photos by someone knowing they are not licensed or privileged to do so and without the subject’s consent, regardless of any intent to cause serious emotional distress.
Besides state laws, companies like Google, Facebook, and Twitter have joined the revenge porn bandwagon and enacted rules that ban non-consensual nudes. Facebook recently announced artificial intelligence tools to keep flagged images off its site permanently. And the federal government is finally in the process of passing a bill that would make revenge porn illegal for sharing non-consensual nude images regardless of whether the images were distributed by the ex-boyfriend or an anonymous person seeking profit.
Some people, however, believe the revenge porn laws are overbroad and infringe free speech. The main argument is that revenge porn laws could be used to punish people who have not engaged in behavior considered revenge porn — like a reporter, for example, using screenshots of Anthony Weiner’s tweets (talkingpointsmemo.com or wired.com), or publishing a photo like Nick Ut’s iconic photo from the Vietnam War of the napalm girl.
Victims of revenge porn who live in states that do not have laws to stop those vengeful ex-lovers often turn to civil tort actions and anti-cyber harassment laws for remedies against unwanted distribution of nude photos (laws like Invasion of Privacy, Public Disclosure of Private Facts, and Intentional Infliction of Emotional Distress). Also, the majority of pics and videos distributed are taken by the subjects themselves. So a victim could bring a copyright infringement action, and file a DMCA takedown notice to have the image removed.
Not all states have revenge porn statutes, so do your research (see cybercivilrights.org or 50 state guide to revenge porn laws). And if you need ideas on how to weave revenge porn into your plot and the damage such actions can inflict on your characters, current events are the perfect place to start.