On October 1, 2013, California Governor Jerry Brown signed several pieces of legislation into law. One of these, Senate Bill 255, contains clauses making so-called “revenge porn” a crime.
Revenge porn is a relatively recent phenomenon, enabled by always-on technology, and occurs when a person takes a sexually revealing picture of another person such as an intimate partner, with his or her consent. Such photos are meant to be private but after a breakup or falling out, the person with the photo uploads it to the Internet or sends it to others for the purpose of seeking revenge against the person in the picture.
While California is only the second state to prohibit such conduct, critics argue the legislation does not go far enough.
What Senate Bill 255 Says
Section 4(A) of the bill reads as follows:
“Any person who photographs or records by any means the image of another identifiable person with his or her consent who is in a state of full or partial undress in any area in which the person being photographed or recorded has a reasonable expectation of privacy, and subsequently distributes the image taken, with the intent to cause serious emotional distress, and the other person suffers serious emotional distress”
Breaching this law makes an ex-boyfriend or ex-girlfriend guilty of an offense. The crime is a misdemeanor with a maximum punishment of six months in jail and a $1,000 fine.
The purpose of the law is to provide a remedy to those persons who are victims of revenge porn. State Senator Anthony Cannella (R-Ceres), who introduced the bill in February 2013, said the law is meant to prevent persons from having their private photos and recordings posted on the Internet without their consent.
Prior to the law’s enactment, the only remedy a victim of revenge porn had was to file a notice with the hosting site under the federal Digital Millennium Copyright Act. But under that legislation, the photographer, not the person in the picture, is deemed to be the owner of the material. And even if a DMCA application turns out to be successful, it is a cumbersome procedure, especially when the material is posted on several different sites.
Critics: Law Does Not Go Far Enough
A source of the major criticism of the law can be found in the first six words, “Any person who photographs or records.” Only the person who actually takes the photograph or makes the recording can be charged for revenge porn. The law excludes situations where a third person may have taken the pictures and the person appearing in them later shared them with someone else.
More importantly, the law does not cover the case of “selfies;” where people take pictures of themselves to send to another person and later find the material posted online.
Dr. Holly Jacobs is the founder of the website End Revenge Porn. In 2009, her ex-boyfriend posted intimate pictures of her on several internet sites. As well, he provided details about her such as her email address and where she worked.
According to Jacobs, almost 80 per cent of photos posted on the Internet by former spouses, girlfriends and boyfriends are ‘selfies’ and therefore do not fall under the purview of California’s porn revenge law.
Another criticism of the law is that it is not enough the victim is embarrassed or stressed by the dissemination of the photographs and recordings. The prosecution must prove the victim suffered “serious emotional distress” before it can obtain a conviction.
The photographer must also post the material with the “intent to cause severe emotional distress.” This excludes situations where an ex might have the pictures and decide to sell them for financial gain, knowing they will be disseminated.
California Only Second State to Prohibit Revenge Porn
Although revenge porn falls under New Jersey’s general cyberbullying law that was passed in 2003, California is the first state to pass legislation aimed specifically at revenge porn.
One reason given why other jurisdictions have not acted is out of concern for First Amendment rights. The ACLU criticized the California law because it could criminalize the release of photographs and recordings that are politically relevant, and could make it an offense to post pictures that may be evidence of a crime.
The Electronic Frontier Foundation (EFF) has also criticized the legislation as criminalizing acts that may, under certain circumstances, amount to a victimless crime.
An urgency clause was inserted into the bill bringing it into effect immediately after it was signed by the governor.
Government of California. Senate Bill No. 255 (2013). Accessed October 3, 2013.
NBC News. ‘Revenge porn’ law passes, but doesn’t cover photos shared by victims. (2013). Accessed October 3, 2013.
CNN. New California ‘revenge porn’ law may miss some victims. (2013). Accessed October 3, 2013.
CNET. Post ‘revenge porn’ in California and you may go to jail. (2013). Accessed October 3, 2013.
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