California's "Revenge Porn" Law: From A Lawyer's Perspective

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” 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 38 other states have done, California has a “Revenge Porn” law codified as Penal Code 647(j)(4). This law makes revenge porn a misdemeanor. The punishment is six months in jail and a $1,000 fine with additional fines for repeat violations. [note- it is my understanding that this law is being amended to take into consideration some of the “challenges” I share below. Check with a lawyer for the latest information regarding amendments and updates].

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. (see updates and amendments to law)

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.