California’s New Revenge Porn Bill: Helpful-ish

The California legislature passed, and Governor Jerry Brown signed, a bill that creates misdemeanor criminal liability for certain types of revenge porn. Here’s the new statutory language, at Ca. Penal Code 647.4(j):

(4) (A) Any person who photographs or records by any means the image of the intimate body part or parts of another identifiable person, under circumstances where the parties agree or understand that the image shall remain private, and the person subsequently distributes the image taken, with the intent to cause serious emotional distress, and the depicted person suffers serious emotional distress.

(B) As used in this paragraph, intimate body part means any portion of the genitals, and in the case of a female, also includes any portion of the breasts below the top of the areola, that is either uncovered or visible through less than fully opaque clothing.
(C) Nothing in this subdivision precludes punishment under any section of law providing for greater punishment.

The bill is likely to be helpful… sort of. On the plus side, it invokes the understanding of the people involved as a trigger: liability can attach when you distribute the image of someone’s intimate body parts, in situations where the initial recording was understood to be / remain private. It covers any form of recording, so both video and still images are considered. And, it attaches to a type of revenge porn where, under current law, the person who takes the photo or records the video holds copyright, depriving the subject of the recording of the power to launch takedown notifications under Section 512 of the Copyright Act.

But, there are some significant shortcomings. First, and most important, this is state criminal law. That means prosecutors can go after the initial perpetrator (typically, an ex-partner of the victim), but they’re powerless to enforce anything against Web sites or other Internet intermediaries that host the images / videos, due to the immunity provided by 47 U.S.C. 230. Second, the bill does not cover instances where the victim takes the initial photo under this shared understanding of confidentiality, and then the recipient distributes it. In short, selfies aren’t covered. Third, the intent and harm requirements seem to unnecessarily narrow the ambit of the law. Proving intent is always tricky. A defendant might argue that their intent was not to cause serious emotional distress, but rather to brag about the attractiveness of their partner. And the harm aspect means that until the victim learns of the distribution, and suffers serious emotional distress, there is no possible criminal liability under the bill. So, if someone sends around a nude photo of me, and it affects my employment opportunities, keeps me from dating people I find interesting, and causes me to be subject to harassment, there’s no liability – until I suffer emotional, as opposed to financial / reputational, harm. It’s a strange triggering provision.

As I posted recently, I continue to prefer a copyright-based approach to ones sounding in criminal or privacy law. More on this soon.

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