Ugly break-ups are nothing new, but selfies, sexting and social media have opened a new avenue for exes to punish each other. When one ex keeps nude or sexually explicit photos of the other and publishes them to the internet or to their mutual contacts on social media, they create “revenge porn.”
Some jurisdictions have been creating new criminal offences to combat revenge porn, including Canada’s Bill C-13 and California penal code article 647.4. Victims have also pursued remedies under tort law seeking damages for public disclosure of private facts, intentional infliction of emotional distress or other torts. But neither a criminal conviction nor a successful tort suit necessarily ensures the timely removal of the victim’s images from wherever they have been disseminated.
If quickly taking images down is a primary goal, does copyright law offer a better solution to the revenge porn problem?
In her paper, “Using Copyright to Combat Revenge Porn”, Amanda Levendowski argues that copyright is a natural fit for combatting revenge porn. A significant portion of revenge porn is created by uploading selfies that were originally taken by the victim and then sent to the harasser before the relationship ended. In this kind of selfie-based revenge porn, the victim is not only the subject of the photos but also the creator. That means copyright in the photos lies with the victim. Even if a formal review of copyright law was not in mind as they snapped the selfie, they likely did contemplate something akin to the negative right – they expected to be able to control who saw the photo and where it was distributed or they would not have taken it.
Levendowski reviews the inadequacies of tort law and the First Amendment challenges to crafting criminal laws when dealing with revenge porn. She goes on to argue that copyright is not just a theoretical solution, but a practical one as well. Because the Digital Millenium Copyright Act created a self-administered notice-and-takedown scheme, revenge porn victims can use those processes to quickly and cheaply request the removal of their photos from sites where they appear. Where sites do not comply with those requests, they sacrifice their immunity for damages and may be subject to civil or criminal penalties.
Danielle Keats Citron views copyright as a solution for revenge porn with a warier eye for both theoretical and practical reasons. In an article with Mary Anne Franks, “Criminalizing Revenge Porn”, she notes that the personal and social harm caused by revenge porn can not be reduced to a property claim. Not all revenge porn is created from selfies, so not all revenge porn victims own the copyright in the nude images being posted of them.
In Citron's book “Hate Crimes in Cyberspace”,1 she details the legal strategies of a variety of online harassment victims; these accounts highlight the practical difficulties of using copyright law to combat harassment. One victim spent hours sending takedown requests, but many sites did not respond or offered to remove the photos only for a fee. Despite success in some instances, she found her photos had appeared on new sites, renewing the process. The victim eventually launched a civil suit based on tort claims in state court. A claim based on copyright would have required a separate action in federal court, so she didn't pursue that avenue.
Mitchell Matorin, an attorney who represents revenge porn victims, highlights other practical difficulties with using copyright and other civil remedies to combat revenge porn. He notes that revenge porn operators are not good citizens eager to comply with the law, as some victims who have filed suit have found themselves subject to greater harassment. Site operators do not fear high damage awards because statutory damages are available only where the copyright is registered, which is unlikely to be the case with intimate images. Third party sites like Google may publish the takedown requests that they receive, so while they do remove links to the images from their index, anyone searching for information on the victim is informed of the existence of that content.
Derek Bombauer believes that copyright law, with its existing mechanisms for recognizing shared rights in the same property and balancing first amendment concerns, is the right solution to the revenge porn problem. He sees the creation of intimate images to be a social good of the kind copyright law was designed to encourage and argues in favour of expanding that law to recognize a new copyright for the identifiable subjects of intimate media. The proposed new right would allow creators to control the distribution of the images and would require written authorization for the recipient to display the images to others, whether publicly by uploading them to the web or privately by sharing them with the victim's friends, family, or employers. This would expand copyright beyond selfies to protect even those who did not directly author their intimate images and also provide for statutory damages without prior registration of the copyright.
Copyright law can be a quick self-help tool for victims seeking remove their images from the web. But the current limitations on who can avail themselves of copyright law and how infringers respond to takedown requests make it an incomplete solution to the problem. Viewing copyright law as the solution to revenge porn also ignores one key element: while revenge porn victims may approve of having their intimate images removed from the web, they would undoubtedly prefer not being victimized in the first place. Current copyright law can help clean up photos retroactively, but changes are needed to compel harassers to think twice before they upload.
Jacquilynne Schlesier is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.
1. Danielle Keats Citron, Hate Crimes in Cyberspace, (Cambridge: Harvard University Press, 2014).