Revenge Photos And The Law: What Are Your Rights?

The internet is a wonderful thing – we have instant access to all the information we want we can communicate across the globe in moments. The world is more connected than it has ever been before. We can share photos of our birthday parties, our food, and the funny things our cats do. But of course, there’s a dark side as well. With a camera phone in every pocket, sometimes we end up with photos that are compromising – and sometimes people choose to use them against us. What are our rights when it comes to revenge photos?

What Are Revenge Photos?

Essentially, they’re just what they sound like – compromising pictures designed to hurt someone or damage their reputation. Most commonly, that comes in the form of “revenge porn,” or pictures of people while they’re undressed or engaged in sexual acts. In some cases, revenge photos may involve pictures of people who are very intoxicated or in some other compromising position. In any event, revenge photos are shared on the internet in order to cause distress or damage a person’s reputation, which can affect their status as a student, their employment or employment prospects, their reputation, and their personal relationships.

California’s Law On Revenge Photos

In 2013, Senate Bill 255 went into effect in California, marking the state’s first attempt to crack down on revenge photos. Specifically, this bill focuses on revenge porn – it doesn’t cover photos of people who are drunk or otherwise compromised.

It was already illegal to use a concealed camera or camcorder to take identifiable photos of people in a state of undress in a place where there is a reasonable expectation of privacy – a locker room, bedroom, or changing room, for example. Note that this original law does not apply if the person being photographed gives consent, if the person is not identifiable in the photo, or if the photo was taken in a public place. Breaking this law is considered “disorderly conduct,” which is a misdemeanor. A first violation comes with a fine of up to $1,000 and/or up to 6 months in jail. Second and subsequent violations comes with a fine of up to $2,000 and/or up to a year in jail.

The new law expands the scope of this type of disorderly conduct, making it illegal to disseminate photos of “the intimate body parts” of another person even if the photos were taken with their consent, as long as the people involved agree or understand that the photos are private. The law only applies where the photos were disseminated with the intention of causing emotional distress and do actually cause that emotional distress. Cal. Pen. Code § 647(j)(4)(A).

The original version of SB 255 did not include selfies, which make up as much as 80% of revenge porn, according to the Cyber Civil Rights Institute. In 2014, Senate Bill 1255 amended the law to include any distribution of photographs of someone’s intimate body parts, regardless of who took the photo. That means selfies are now covered.

Note that this law does not mention photos of people in other compromising positions, only photos of people’s intimate body parts.

If the photos or videos involved depict a minor, the person distributing those photos may face additional charges for distributing child pornography.

Dealing With Revenge Photos

While the law against revenge photos is an important protection for victims (and hopefully a deterrent), it unfortunately can’t make the original photos go away. Whether they’re shared on social media or on sites specifically dedicated to revenge porn, photos can quickly spread across the internet and can be very hard to remove.

Under federal law, websites are generally protected from liability arising from a third party (the person posting the revenge porn) posting to the site. 47 U.S.C. § 230(c). There are some potential ways around this protection, but the whole area of law is still unsettled and you’ll need to speak to an attorney about the specific facts of your case. If the picture or video is a selfie, you may be able to argue that you hold the copyright (since you took the photo or video) and get a court order to force websites to take it down. However, there’s not a lot you can do to track where the photo or video has ended up, so you may not be able to erase it completely.

If you’re the victim of revenge porn, experts recommend using SEO to “bury” it – put enough other information online about yourself that the photo or video gets pushed way down in the rankings on search engines. That way, anyone that looks you up won’t see that content unless they go through many pages of search results. You could start increasing your activity on social media (and make sure that it uses your real name), start a YouTube channel, or write a blog. You should purchase your own domain name (firstname.lastname.com or firstnamelastname.com) so that no one can use that domain to make the photo or video seem legitimate. You can also reach out to sites that have posted the photo or video and ask them to take it down.

You may want to hire a professional SEO firm to bury the content for you; it may take some technical skills.

What To Do If Someone Posts Revenge Photos Of You

If someone posts revenge porn of you, the first step is to document it. Take screenshots of the posts or save the web pages as PDFs. If there’s video, download it and save it along with a screenshot of where it came from. Then you should speak to an attorney as soon as possible. They’ll help you draft the necessary letters to the websites and search engines to make sure they preserve the evidence. In addition to the criminal penalties, you may be able to seek compensation for the damage the revenge photos have done – maybe it affected your job, for example, so you lost wages.

If you’re a victim of revenge photos, we can match you with an experienced attorney who can help you defend your rights and manage the consequences of the photos or videos.

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