A legal journal has called for an amendment to federal law to help victims of revenge porn: the online posting of nude or sexually explicit photographs or videos of a former lover without his or her consent.
Writing in the journal Information and Communications Technology Law, Allison Tungate of the University of Missouri-Columbia School of Law explains how unintended consequences of Section 230 of the Communication Decency Act make it nearly impossible for victims of revenge porn to get what they want most: the offending images removed from public view.
The Act provides blanket immunity for website operators and Internet Service Providers that feature user-generated content. Thus even if victims make operators and ISPs aware of the “involuntary pornography” posted on their sites, no duty exists for them to remove it.
Because the law effectively makes only the posters of offensive content culpable, Tungate notes that “victims of revenge porn are faced with mountainous hurdles in order to seek any form of justice”, including pursuing actions for invasion of privacy, breach of copyright or even the breaking of “implied or express contracts of confidentiality”. Robust new criminal laws in New Jersey, California and New York target those who post such images, but still cannot oblige ISPs to act.
Tungate does not argue that Section 230 is itself a bad law (“Without Section 230 immunity, sites like YouTube and Reddit, which largely consist of user-generated content, would cease to exist”), but that it must be modified. “Because of the growing pervasiveness of revenge porn,” she concludes, “lawmakers have an obligation to amend Section 230 of the CDA to protect victims and mitigate the harms stemming from the public disclosure of such private information.”
Tungate outlines her proposed amendment, which would include a firm definition of what constitutes revenge porn and obligatory “takedown” procedures once notice is given to ISPs. She also counters potential objections, including those pertaining to freedom of speech (“Revenge porn, because of its harmful and detrimental effects on society, is well outside the protections of the First Amendment”).
“The line between our Internet activities and real world activities is growing thinner as technology progresses,” she writes. “Thus, there is an increasing need of laws that will protect both our ‘online’ lives and ‘real world’ lives.” Most victims of revenge porn would certainly agree.
Author Allison Tungate is currently a third year law student at the University of Missouri. She is currently a Lead Articles Editor for the Journal of Environmental and Sustainability Law. In addition, she is an active member of the legal fraternity Phi Gamma Delta. Upon her graduation in May 2015, Allison plans on practicing law in Colorado.
