‘Take It Down’ Bill Would Help Fight the Phenomena of ‘Revenge Porn’

This week, First Lady Melania Trump participated in a roundtable discussion with lawmakers and victims about the scourge of “revenge porn”—viz., the online posting of intimate photographs or films without the consent of the party involved.

She urged lawmakers to pass the “Tools to Address Known Exploitation by Immobilizing Technological Deepfakes on Websites and Networks Act,” also known as the “Take It Down Act,” a new bipartisan bill that was recently introduced by Senators Ted Cruz, R-Texas, and Amy Klobuchar, D-Minn.).

Good for her.

Along with doxxing, phishing, spoofing, and the like, revenge porn is one of the major harms that modern-day communications technology poses.

The principal, but not exclusive, victims of this tawdry practice are women in their teens, twenties, or thirties who allow someone to photograph them in a risqué pose or who are photographed without their knowledge and consent. As I noted in a 2017 Heritage Legal Memorandum, a December 2016 study revealed that revenge porn “affects one in 25 Americans, mostly people in the 15–29 age bracket and more often women than men.”

Revenge porn can cause severe emotional trauma to its victims, some of whom have committed suicide.

The practice of sharing such photographs predates the development of the World-Wide Web. But the Internet’s ability to allow parties to transmit photographs across the globe has exponentially increased the visibility of such photographs and, therefore, has multiplied greatly the harm that such photos can cause.

Further aggravating the problem is the lasting nature of photographs posted on the Internet. As I wrote in 2014, “[l]ike an elephant, the Internet never forgets. Information potentially lives in ‘the cloud’ forever.” The inability to correct a past mistake—or, what is worse, to halt continuing victimization—keeps us from leaving behind episodes in our lives we would rather forget.

Congress is partially to blame for this phenomenon. Congress passed the Communications Decency Act of 1996 to allow websites to delete obscene or offensive material without incurring civil liability. The CDA achieved that result by providing that a website cannot be deemed “the publisher or speaker” of material posted online by someone else.

Unfortunately, in Reno v. ACLU, the Supreme Court declared that the provisions in CDA defining “offensive” speech were unconstitutional.

The unintended consequence of this ruling is that now websites are immune from damages or injunctive relief for posting revenge porn if the website posts it without editing or revising it. Victims of revenge porn therefore have found themselves unable to sue a website to halt its ongoing publication of material that humiliates them before the world.

At the center of this pernicious practice is an ancient, well-known, and (unfortunately) ineradicable character flaw: betrayal.

As I have explained before: “The essence of revenge porn is the Internet-posting of nude photographs of a former intimate partner for the purpose of subjecting her to public humiliation.” The publication is accomplished “through a betrayal of the trust that the victim had in her partner that he would never publicize the photographs.”

There might be help on the way.

The Take It Down Act would make it a crime, punishable by fines, imprisonment, or both, to publish intimate visual depictions of nonconsenting parties, or to make “deepfakes” of such photos (such as computer-imposed transfers of someone’s face onto a different person’s body). The bill provides that consent to the taking of a photograph is not, by itself, consent to the publication of that photograph.

The act also contains civil enforcement provisions. One would enable victims to force a website to remove a nonconsensual visual depiction and any copies of it. Another provision would empower the Federal Trade Commission to enforce the act through its ordinary processes, which include seeking relief in federal court. This bill, if enacted, might go a long way toward stemming this pernicious, disgusting practice.

There is no legitimate Free Speech Clause defense to the posting of revenge porn.

The Supreme Court’s 1991 decision in Cohen v. Cowles Media Co. is directly on point. There, a journalist for a newspaper assured Dan Cohen of confidentiality for any information that Cohen supplied him about a political candidate, but the newspaper “outed” Cohen as its source. After Cohen was fired, he sued the newspaper for a breach of its confidentiality agreement. The newspaper maintained that the Free Speech Clause shielded it from any liability for its broken promise of confidentiality.

In an opinion by Justice Byron White, the court expressly rejected that claim. As White explained, newspapers have no Free Speech Clause shield against generally applicable, content-neutral laws such as the antitrust laws, the tax laws, the copyright laws, and the labor laws. Those statutes can be applied to the media in the same manner that they apply to everyone else.

The same is true of the state laws governing promissory estoppel, which “simply requires those making promises to keep them,” which does not infringe on freedom of expression because “[t]he parties themselves…determine the scope of their legal obligations.” Any restrictions placed on the publication of truthful information under such circumstances are “self-imposed.”

That rationale fully applies here. Betrayal of an implied agreement not to publish such photos is the crux of this problem. Each action would constitute the offensive publication of private details of someone’s life, for which tort law provides a damages remedy.

“The only difference between that scenario and the one characteristic of revenge porn is that the person who published the photograph violated a tacit agreement between the parties over what could be done with it”—a tacit agreement that goes as follows: May the photograph be taken? Yes. May that photograph be kept by the significant other photographer? Yes. May that significant other publish the photograph on the Internet? No, no, and no. The breach of that assurance of confidentiality is what tort law may and should protect.

And, of course, the surreptitious taking and publication of such visual depictions is a straightforward invasion of privacy without the need for a victim to prove a tacit agreement.

If it became law, the Take It Down Act would be a valuable step in the right direction because it would help stem the prevalence of this repulsive practice and reduce the number of future victims.

Kudos to the First Lady for putting a spotlight on this important issue.

The post ‘Take It Down’ Bill Would Help Fight the Phenomena of ‘Revenge Porn’ appeared first on The Daily Signal.