A new trend in online reputational harm is to post sexually explicit pictures of an ex on a revenge porn website along with a screen shot of her Facebook profile which has all of the employer/home town/high school-type information that people provide Facebook, so that when you search for the victim’s name, you find the nude images along with all of the victim’s personal information and public facing Facebook profile. (The most well know of these sites is mentioned in our past post.)
How do nightmare exes and these websites get away with this pernicious form of reputation sabotage? Because the victims are usually 18 to 25 year olds. This age group is particularly vulnerable. They most often do not have tens of thousands of dollars to spend on a lawyer to deal with the ex and to wage the legal war necessary to obtain a judgment and then collect on it. In short, young adults are left to fend for themselves in the online cesspool of anonymous reputation sabotage.
But aren’t revenge porn websites immune from liability under section 230 of the Communications Decency Act? Not necessarily. Unlike ripoffreport and its progeny that arguably provide a venue for protected speech, it should always be unlawful to post private naked images without consent. Therefore, the site’s structure as a revenge porn site falls squarely within the “harassthem.com” hypothetical posited by Judge Kozinski in Fair Housing Council of San Fernando Valley v. Roommate.com, LLC, 489 F.3d 921 (9th Cir. 2007). In addition, despite the protection of section 230, websites remain vulnerable to intellectual property–related claims such as those arising under copyright law. Many of the images that are published to revenge porn websites without the consent of the victim are self-portraits. The victim is therefore the photographer and owner of the copyright in the image. So either the website is the original publisher of the image, in which case the website is directly liable, or the website is storing the photos at the direction of a third party, in which case it may be secondarily liable. This is perhaps the next wave of online reputation litigation, and the test cases will define the future of internet and privacy law.
WMC needs your help! If you support our mission, please consider a donation. If you are a law firm that has the interest and resources to litigate cutting-edge section 230 cases on a pro bono basis, please let us know. We would welcome the introduction.