California’s “Revenge Porn” Law (a lawyer’s perspective)

 

Revenge Porn

It hasn’t been a good weekend. You broke up with your boyfriend who turned out to be a complete jerk. To make matters worse, your NBA team, the Cleveland Cavaliers, just lost game seven of the NBA finals.

Your smartphone vibrates and you check your text messages. The first text is from your best friend. You tap the screen and the message reads, “OMG. Check Twitter NOW!!!”

After a few more taps and swipes, what you see next makes your heart stop. You can’t believe what your ex-boyfriend just did. This dirty #$%@#  just tweeted out to 125,000 people a link to a private video that he took of the two of you last week celebrating your birthday while being extremely “romantic” in his bedroom.

You didn’t want to shoot the video but things got a little crazy and it just ended up happening. You both watched it and he told you he deleted it.

Now, the entire world is watching. The video has gone viral. Someone even added the hashtags #slut and #easy to a re-tweet. You’re devastated, shocked, embarrassed and don’t know what to do.

Revenge Porn is a Huge Problem!

Unlike many celebrities who intentionally allow their sex tapes “inadvertently” get distributed on social media by “mistake” to generate publicity, your videotaped moment was private. At least you thought it was. What your ex-boyfriend did isn’t OK and now you want to know what your rights are.

Well, in California, there’s a law that helps protect people just like you from what is being referred to as “revenge porn” being posted online. A law designed to hopefully deter disgruntled ex-boyfriends, girlfriends, spouses, and anyone else for that matter, from posting private pictures and videos online without the express permission of the other person.

As two other states have already done (New Jersey and Wisconsin), Governor Jerry Brown signed SB 255 into law in California. This new law makes revenge porn a misdemeanor under California’s disorderly conduct statute. The punishment is six months in jail and a $1,000 fine with additional fines for repeat violations.

To prove this crime, the criminal prosecutor must show that the defendant:

(1) took pictures or videos of another person’s intimate body parts, with the mutual understanding that such images will be kept confidential;

(2) distributes such images, where the victim is identifiable;

(3) has the intent to cause serious emotional distress to the victim; and,

(4) the victim actually suffers such distress.

This crime seems rather straightforward but proving these allegations is easier said than done. As a trial lawyer, here are several reasons why I feel this way.

First, there are several specified defenses to this new law. If the victim takes pictures or presses record on the camera, then the new law does not apply. Apparently a “selfie” type of picture or video will stop liability.

Another defense involves hacking. If the images are stolen by a hacker from the victim’s computer and then distributed by third parties, there may be no liability. This is because the ex-boyfriend was not the person who distributed the images. An interesting side note is that people who did not take the images but who redistribute them later (friends of your ex-boyfriend) apparently cannot be charged with this particular crime.

When it comes to showing intent, the lawyer in me thinks this may be very difficult to prove in a court of law beyond a reasonable doubt. A defendant who claims he or she was uploading the images to his private cloud or for his own use and never intended to share them publicly may have a good argument for being found not guilty. Even if the defendant’s assertions are untrue.

Intent can be hard to prove in the criminal courts. Add to this the uncertainty of digital sharing and uploads and most good criminal defense attorneys will find several good arguments to mitigate or eliminate the element of intent.

Also proving that the defendant intended to cause serious emotional distress or, that the victim actually experienced and suffered emotional distress will be a challenge. Sure, each case is different, but when all said and done, it will ultimately be up to the trier of fact (the jury) to make these determinations.

Steps to Protect Yourself

I think the best thing to do if you find yourself the victim of revenge porn is to immediately contact the local police or sheriff department. Report the crime and make sure everything is documented in writing. Meet with the police investigators in person. Do not try and do all this over the phone or by email.

Ask the investigating officers to contact the District Attorney’s Office so formal criminal charges can be filed. Diligently follow-up with the police officers and District Attorney’s Office until you get the satisfaction you’re looking for.

When communicating with the police or District Attorneys Office, avoid email and text messages. Put everything in writing and communicate via Fed Ex or Certified Mail. Be polite but assertive. Don’t accept no for an answer. If the elements of the crime have been met and, you are willing to publicly go forward as a victim, then make sure everyone does their job to get your day in court.

At the same time and even before contacting the police, you may want to contact a civil lawyer to coordinate the investigation, preservation of evidence, and eventual filing of a civil lawsuit for money damages. You may also seek an injunction to stop the distribution of the images and even an order to have removed from social media. While the order is not that difficult to obtain, getting the images and videos removed from the digital platforms can be very difficult and is sometimes, for all practical purposes, impossible.

Each case is unique and depending on the facts of your case, available causes of action in the civil courts might include negligence, emotional distress, invasion of privacy, harassment, civil conspiracy, defamation, stalking, fraud, and injunctive relief. Money damages may be asserted for the harm, medical treatment, embarrassment, and pain and suffering. Punitive damages may also be available against the defendant.

Now that I think of it, the entire process for notifying the police and contacting the District Attorney’s Office for prosecution is almost identical to what I’ve recommended you do when dealing with bullies. To keep things simple, I’m going to suggest that you simply read the last part of this earlier post on bullying for all the details.

 

Conclusion

The problem of revenge porn is getting worse, not better. With new digital platforms that include live streaming video, personal videos can be shared globally, in real time, without the victim even knowing about it.

If you are a victim of revenge porn, please make sure to document everything in writing and do everything you can to obtain and preserve all evidence. These new laws can help protect your legal rights but your success in court will probably come down to how well you follow the above advice. Getting the police, District Attorneys Office, and private legal counsel involved sooner rather than later is the best way to make sure everything is done correctly.

Has Legalizing Pot Made Our Roads More Dangerous?

you_should_know_pot_accident_update_june_2016

Drinking remains the number one cause of accidents and deaths from impaired driving. However, an increasing number of drivers are testing positive for marijuana. In this month’s newsletter we share the latest reports on this growing public safety concern.

Elizabeth Kemble, a widely admired advocate for kidney health in Oregon, was out for a walk following her third kidney transplant when she was killed by a driver who admitted to smoking marijuana minutes earlier. Debra Majkut, an Ohio mother of two, was sitting on her couch with her children and a nephew when a woman high on pot crashed into Majkut’s home, killing her and seriously injuring her infant son.

Nightmare scenarios like these are exactly what safety advocates predict will become commonplace on our nation’s roads as the list of states legalizing marijuana for either recreational or medicinal use continues to grow. But instead of clearing the smoke, conflicting studies and a patchwork of state laws have complicated this issue for all of us concerned about impaired driving.

Click to learn the latest here. >>>

One Way To Deal With Distracted Drivers!

This is how distracted driving destroys lives

(1 minute video)

Now that I’ve got your attention, I’d like to ask you the following question:

Have you ever watched John Quinones’ ABC television show, “What Would You Do?”

During the show, hidden cameras allow viewers to watch how people behave when they are confronted with dilemmas. Some take action and help. Others walk by and do nothing.

I find the show both informative and engaging. It think it tells you a great deal about our society. It’s interesting to see how people react differently to uncomfortable situations. Some do the right thing, step up, and help. Others look the way and then after the fact, offer lame excuses for why they didn’t get involved.

Drunk Driving

Now let’s move to the real world for a moment. We’re standing together in your neighborhood and in front of your house.

A drunk driver is speeding by while swerving back and forth down the street. Your kids are out front playing catch. This isn’t the first time you’ve seen this knucklehead drinking and driving.

If this happened to you, what would you do to protect your kids and others in the neighborhood?

A Recent Example of a Community Working Together

One very good example of a community coming together to save lives involves the drunk driving and Periscoping case in Florida. Whitney Beall, 23, was allegedly under the influence of alcohol or drugs while Periscoping and driving. Some people joked about what was happening. Others completely ignored what was going on.

Some people stepped up and did the right thing. They understood the danger and immediately reached out on Periscope begging Whitney to stop. Others asked for help on Twitter, and still others contacted local police authorities. Click to watch this USA Today news story and video

 

usa_today stop distracted driving

Because people took action, Ms. Beall’s life may have been saved. The lives of other drivers were probably saved too. Taking fact action was the right thing to do. Turning the other way and ignoring this situation just wasn’t an option for some of the people watching.

Drunk Driving Statistics

Why do we feel the way we do about drunk driving? It’s because of a massive amount of education and awareness we’ve all been exposed to over the years. For many, it’s about living the nightmare of having someone we care about harmed or killed by a drunk driver.

It’s because statistics show that drunk driving kills almost 10,000 people and injures another 290,000 people each year. Some of these injuries and deaths involve the people engaging in drunk driving. Most involve other innocent drivers and bystanders who are unfortunate enough to get in their way.

Distracted Driving Statistics

Now, what if I was to tell you that each year in the United States 4,000 to 6,000 people are killed, and 400,000 to 6,000,000 people are injured because of distracted driving? Or, how does it make you feel knowing that at any given second during daylight hours, there are 600,000 distracted people driving around paying more attention to the mobile devices in their hands than where they’re going or appreciating what’s in front of them?

Experts are predicting that because of the increasing use of mobile technology, the number of deaths due to distracted driving is on pace to exceed the number of drunk driving deaths in the next three to five years. What that means is you will have a greater chance of being harmed or killed by a distracted driver than a drunk driver.

Candace Lightner (Founder of MADD)

Are you OK with this growing problem? I’m not and neither is Candace Lightner, founder of Mothers Against Drunk Driving. Candace recently said distracted driving “is not being treated as seriously as drunk driving, and it needs to be.” It’s “dangerous, devastating, crippling, and it’s a killer, and still socially acceptable.” (click to read)

I think Candace hit the nail on the head when she made these comments. Recent studies show that more teens are killed while using their smartphones while driving than by drinking. This is a huge problem that most people are unaware of and one that is getting worse each day.

piers morgan distracted driving

What’s exciting for me is watching awareness about this issue increase on a daily basis. Just recently, Piers Morgan, Susanna Reid and UK based police officer and friend, Neil Dewson-Smyth (#DontStreamandDrive), discussed the growing problem of live streaming and driving (the video can be watched at StopDD.Today). The more conversation the better.

I encourage awareness and education through conversation because what both drunk and distracted drivers have in common is that their reckless actions result in more than a combined 15,000 deaths and almost 900,000 injuries each year in the United States along. Globally these numbers are well into the millions. And this problem isn’t getting better folks. It’s getting worse each day.

Everybody Makes Mistakes

Look, I get the convenience of using driving time to catch up with phone calls, emails, text and even create content on social media. Especially in stop and go traffic on our crowded Southern California freeways. Over the years, I’ve done this myself. But then I was approached publicly in a Youtube comment by someone who said, “Mitch, are you sure this is safe to do?”

The question gave me pause. At first I thought, who is this person calling me out? But then, after a few minutes, I stopped what I was doing and gave my conduct serous thought.

I then did the research. The risk, harm and numbers (above) immediately changed my perspective and behavior on this issue. I stopped cold turkey to become a safer drive. I stopped to try and lead by example because I knew others, including my kids, were watching what I was doing.

I came across Joel Feldman’s tragic story involving his beautiful daughter Casey who was killed by a distracted driver. I studied his work, effort and site EndDD.org. As a dad, Casey’s story changed forever how I looked at and would deal with any kind of unsafe driving including distracted driving.

Whether We Like It Or Not, There Are Consequences To Our Actions

As adults, when we make intentional decisions, we must accept the consequences. It’s called being accountable and responsible for our actions.

Being a drunk or distracted driver is a choice. It’s a decision to act recklessly which exposes innocent people other than yourself, to harm and death. It’s not so much about you as it is about the rights and safety of others. And that’s one of the most important points I’m making in this post so I’ll say it again- DISTRACTED DRIVING EXPOSES INNOCENT PEOPLE TO HARM AND DEATH.

Now I’m all for educating our community and raising awareness as to the dangers of distracted driving. Sharing resources that allow people to learn more about what is distracted driving and the harm it causes is a good thing. In fact, that’s what StopDD.Today is all about. It’s about educating the public and bringing awareness to this growing problem.

But here’s the deal. What do you do when you see a friend, acquaintance or someone else using social media or live streaming while driving day after day after day? Let’s say you decide to reach out and call or privately share the resources explaining the risks of distracted driving at StopDD.Today and EndDD.org. And then after doing so, nothing changes.

The distracted driver ignores you and continues to engage in reckless and self-centered distracted driving. As far as you can tell, for them it’s business as usual. They’re hoping you’ll just turn your head, look the other way and do nothing.

As Far As I’m Concerned, We’re All Either Part Of The Solution Or Part Of The Problem

Using social media while driving is a public offense. People who do this, whether they realize it or not, are putting the health and safety of our families at risk.

Exposing someone for distracted driving is simply taking an already dangerous public act and sharing it with your community to hopefully save lives. By engaging his or her audience on the public social media platforms, the distracted driver never had a right to privacy in the first place and never had a right to keep his or her bad habit a secret.

This problem is getting worse each day. We can’t look the other way and not get involved.

It’s our responsibility as a community to do something to fix the problem of distracted driving. Education and raising awareness are important tools. Self-monitoring and regulation as a social community will also do more to educate, raise awareness and fix this problem than anything else I can think of. Ignoring the problem all together is not an option.

When all said and done, I believe that getting involved and taking affirmative action to stop distracted driving isn’t a choice. It’s a requirement of a responsible society.

What Am I Going to Do When A Distracted Driver Refuses To Stop And Continues To Put Innocent Lives At Risk?

When people think their rights to do something on social media are more important than someone else’s life and safety, then they need to take a moment to reevaluate their priorities. Nobody has the right to put someone else at risk based upon their perceived entitlement of social media behavior.

When it comes to dealing with distracted drivers, you can make the choice of not doing anything at all. You can look the other way. You can keep your mouth shut and condone this reckless conduct by your failure to act.

Or you can be that person that we all look up to on “What Would You Do?” You know, the person who does the right thing. The person who says what needs to be said and does what needs to be done to right a wrong and help out her fellow human being.

For me the answer is easy. I will probably unfriend them and stop supporting them on the digital platforms. If I feel the specific circumstances require me to do so, I will stand up and share my concerns publicly, because in my opinion, it’s the right thing to do.

But that’s just me. I’m been doing this sort of thing for the last 30 years as a trial lawyer and it’s just who I am and I’ll never apologize for trying to do the right thing and help others.

I believe that accurately holding another person accountable for his or her misguided, dangerous and often times criminal actions makes society a better and safer place. I personally have a zero tolerance for big corporations that put profits over people. I have a zero tolerance for people and companies that defraud others.

Other dangerous activities I have a huge problem with include habitual distracted drivers and repetitive drunk drivers. I’m not talking about someone making a bad choice or one time mistake and not knowing any better. I’m referencing people that do this over and over and over.

Along these same lines, if I learn that someone is engaged in child abuse, spousal abuse or any hate crimes (just to mention a few), then I will take legal action and also report that person to the local police authorities. If public safety is a concern, then I also will not think twice about going public with the information in my possession.

Again, I have zero tolerance for any of the above types of activities and believe my 30 year record of helping victims as trial lawyer clearly speaks for itself. I’m concerned about the well being of the victims. I’m not all that concerned about how the perpetrators feel.

distracted_driving_victims

For whatever reason, you may feel different about distracted driving or how to fix the problem. Either way, I invite you to reach out and learn more about this problem and these families who all have lost loved ones to distracted drivers (click here). Visit the link and read their stories. Maybe this information will change how you feel.

While writing the last paragraph, I thought about how the families of these victims would have appreciated someone stepping up, reaching out, and dealing with the distracted drivers before tragedy struck their lives. And I don’t think it’s going out on a limb to say that I seriously doubt any of these families would be concerned whatsoever about hurting the feelings of an exposed distracted driver during the process.

In life, not every situation is the same. Different facts and situations dictate different solutions. That’s why I believe when people make the blanket statement “exposing someone for repetitive distracted driving is bulling, shaming and defamation,” I believe they’re wrong. In fact, it’s not even a close call.

Exposing a distracted driver is not bullying or shamming. It’s about being an adult, standing up, and holding people accountable for their intentional self-centered decisions and actions.

Exposing a distracted driver is not defamation because sharing true and accurate facts is the right thing to do and is  permissible in both law and equity.

Conclusion

These are my thoughts on distracted driving and how to deal with this growing problem.

Hopefully raising awareness through education will help change reckless behavior. Most of the people my friends and I have reached out to simply never appreciated the risks and dangers of distracted driving. They were very good people making bad decisions.

The good news is that after learning about the risks of distracted driving, they stopped. Most were thankful. Many are now strong advocates in StopDD.Today or EndDD.org movements.

You see, when it comes to distracted driving, it’s not what any of us did yesterday that matters. It’s what we do today and tomorrow that is important. Leading by example will save lives.

So I conclude this post by asking you the following question. Now that you are fully aware of the dangers of distracted driving…

What will you do the next time you see a distracted driver?

Mitch Jackson, Esq.

(please share your thoughts, comments and questions below or at StopDD.Today)

 


Stop Distracted Driving #StopDD

Distracted Driving Resources:

StopDD.Today

EndDD.org

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Mitch Jackson Named Rotary District 5320 Interact Chair

Jon Mitchell Jackson Orange County Personal Injury and Wrongful Death Lawyer 200Incoming 2016-17 Rotary District 5320 Governor, Ray Sanford, appointed Mitch as the incoming District 5320 Interact Chair. The position oversees Interact efforts of 45 local Rotary Clubs and more than 60 potential middle school and high school Interact Clubs in Orange County, California.

For those of you not familiar with Interact, it is a club youth ages 12-18 who are interested in connecting with others in their community or school. Interact club members have fun while carrying out service projects and learning about the world. Interact clubs organize at least two service projects a year: one that benefits their community and one that encourages international understanding. While Interact clubs receive guidance from individual Rotary clubs, they govern and support themselves.

If you’d like to learn more about Interact, please connect on Facebook, visit Interact’s YouTube channel, or learn more at the Rotary International Interact page.

To start or find an Interact club in your area, contact your local Rotary club or reach out to Mitch and he’d be happy to help.


On a side note, most of our friends know that Lisa and I enjoy being active Rotarians with the Monarch Beach Sunrise Rotary Club. A few years ago our daughter, AJ, was honored to serve as our Rotary District’s Interact Governor and also as the President of her high school Interact Club. This year our son, Garrett, is active is the club.

During AJ’s senior year, she and her fellow Interact members did some amazing things to help our local, national, and international communities. Here’s a short video the Dana Hills High School Interact Club put together that I want to share with you!