A Proposal for a Notice-and-Takedown Process for Revenge Porn
Phillip Takhar - Edited by Evelyn Chang
Introduction
One of the most compelling legal and ethical problems on the Internet today is revenge porn. Revenge porn is the phenomenon of placing nude or sexual photographs and videos on the Internet without the consent of the subjects of those media.[1] The vast majority of revenge porn victims suffer from “significant emotional distress [and] . . . impairment in social, occupational, or other important areas of functioning.”[2] Before 2013, only three states had laws that made revenge porn illegal, and victims of revenge porn often had a difficult time soliciting help from law enforcement.[3] There have been positive developments since then: thirty-eight states now have laws criminalizing revenge porn acts,[4] and large Internet companies have implemented policies to combat revenge porn directly.[5] However, many of those laws have been criticized as having "narrow applicability,"[6] and only eleven states currently offer a civil remedy to victims.[7] Additionally, while efforts by Google to delist images identified as revenge porn from search results are a step in the right direction, the images still remain on the Internet after delisting.[8] In fact, it is often difficult to legally require the removal of revenge porn images from the Internet due in large part to Section 230 of the Communications Decency Act (“Section 230”).[9]
Section 230 is designed to protect websites and online services from liability arising from content that is posted by users of the websites and services.[10] This protection is available so long as the website did not curate the content itself, and it is often defended as an important tool for promoting free speech and avoiding censorship.[11] However, this law also enables websites to keep user-generated content online even if it has been found to be harassing or defamatory by a court.[12] Although many websites will comply with takedown orders when it becomes legally clear that content is illicit, some websites retain a policy of non-removal, which enables the content to remain online indefinitely.[13] In the context of revenge porn, Section 230 can enable a website to keep media online despite the fact that the subject did not consent to it being uploaded.[14] It is true that Section 230 has exceptions for illegal content,[15] but as noted above, since the criminal laws governing revenge porn are state laws, they are unable to override Section 230, which is federal law.[16]
One solution that has been proposed in the past is a notice-and-takedown process in the style of the Digital Millennium Copyright Act (DMCA).[17] The notice-and-takedown process is intended to provide a “safe harbor” to online service providers by protecting such providers from liability for hosting copyright infringing content so long as the provider removes the content when requested to do so by the copyright holder.[18] The service provider must also notify the user who posted the allegedly infringing material, and that user is then given the opportunity to submit a counter-notice claiming a right to post the material and asking for it to be reposted.[19] If the sender of the the original notice-and-takedown request chooses, he may sue the user at this point; otherwise, the online service provider must place the material back online.[20] A very similar regime could work in the revenge porn context; a victim could give notice to the online service provider, who would be required to take down the content. If the original poster believes she has a legal right to post the content, she can send a counter notice. If a counter-notice is sent, then the victim would be able to pursue litigation with the content removed from the website in the meantime.[21]...continue...
Recommended Citation
Phillip Takhar, Note, A Proposal for a Notice-and-Takedown Process for Revenge Porn, Harv. J.L. & Tech. Dig. (2018), https://jolt.law.harvard.edu/digest/a-proposal-for-a-notice-and-takedown-process-for-revenge-porn.
[1] See Emily Reynolds, Why there's no 'silver bullet' for ridding the web of revenge porn, Wired (Mar. 16, 2017), www.wired.co.uk/article/revenge-porn-facebook-social-media.
[2] Id.
[3] See Mary Anne Franks, "Revenge Porn" Reform: A View From The Front Lines, 69 Fla. L. Rev. 1, 5-6 (2017).
[4] Id. at 6.
[5] See Jessica Roy, How Tech Companies Are Fighting Revenge Porn---And Winning, The Cut (June 24, 2015), https://www.thecut.com/2015/06/how-tech-companies-are-fighting-revenge-porn.html.
[6] See Emily O’Hara, The ACLU Is Fighting to Keep Revenge Porn Safe and Legal for Pervs, Vice (Nov. 12, 2014), https://www.vice.com/en\_ca/article/wd4yq9/why-the-aclu-is-fighting-to-keep-revenge-porn-safe-and-legal-for-pervs. State laws often target those who upload revenge porn but not website operators who host revenge porn. See, e.g., Alaska Stat. § 11.61.120 (2003) (criminalizing the distribution or publication of photographs depicting nude subjects or subjects engaged in a sexual act); Fla Stat. § 784.049 (2015) (criminalizing the publication of “sexually explicit image[s] of a person that contains or conveys the personal identification information of the depicted person to an Internet website without the depicted person’s consent, for no legitimate purpose, with the intent of causing substantial emotional distress to the depicted person”); La. Stat. Ann. § 14:283.2 (2015) (criminalizing the “[intentional disclosure of] an image of another person who is seventeen years of age or older, who is identifiable from the image or information displayed in connection with the image, and whose intimate parts are exposed in whole or in part”).
[7] See State Revenge Porn Laws, C.A. Goldberg (last updated Mar. 20, 2018), http://www.cagoldberglaw.com/states-with-revenge-porn-laws/.
[9] 47 U.S.C. § 230 (1996).
[10] See Arthur Chu, Mr. Obama, Tear Down This Liability Shield, TechCrunch (Sept. 29, 2015), https://techcrunch.com/2015/09/29/mr-obama-tear-down-this-liability-shield/.
[11] See CDA 230: The Most Important Law Protecting Internet Speech, Elec. Frontier Found., https://www.eff.org/issues/cda... (explaining that most online service providers would probably choose to not host any user content at all if it were possible that they could be liable for it) (last accessed Apr. 1, 2018).
[12] See Eric Goldman, Ripoff Report Not Bound by Takedown Injunction Against User - Blockowicz v. Williams, Tech. & Mktg. Law Blog (Dec. 22, 2009), http://blog.ericgoldman.org/archives/2009/12/ripoff\_report\_n.htm.
[13] Ripoffreport.com is an example of a website that retains a policy of non-removal. See General Frequently Asked Questions, Ripoff Report (last updated Nov. 13, 2016), https://www.ripoffreport.com/f... (“We will not remove Reports even when they are claimed to contain defamatory statements”).
[14] If a photograph or video was taken with the subject’s consent, but uploaded online without the subject’s consent, it can be difficult to compel removal. Some websites will not remove pornographic imagery unless the subject has a copyright claim. See Sara Ashley O'Brien, Woman Awarded $6.45 Million in Revenge Porn Case, CNN (Apr. 9, 2018), http://money.cnn.com/2018/04/09/technology/revenge-porn-judgment/index.html; See also Erica Fink, To Fight Revenge Porn, I had to Copyright my Breasts, CNN (Apr. 27, 2015), money.cnn.com/2015/04/26/technology/copyright-boobs-revenge-porn/index.html?iid=EL.
[15] See 47 U.S.C. § 230 (1996).
[16] See Josh Blackman, Federal “Revenge Porn” Legislation in the Works, Josh Blackman’s Blog (Nov. 25, 2013), http://joshblackman.com/blog/2013/11/25/federal-revenge-porn-legislation-in-the-works/.
[17] See Sarah Jeong, The Final Text of the Proposed Intimate Privacy Protection Act is Better Aligned With Tech Interests, Motherboard (July 15, 2016), https://motherboard.vice.com/en\_us/article/53d59z/new-revenge-porn-bill-shows-silicon-valleys-influence-in-politics.
[18] See 17 U.S.C. § 512 (1998); see also Digital Millennium Copyright Act, Elec. Frontier Found., https://www.eff.org/issues/dmc... (last accessed Apr. 1, 2018).
[19] See Responding to a DMCA Takedown Notice Targeting Your Content, Digital Media L. Project, http://www.dmlp.org/legal-guid... (last accessed Apr. 1, 2018).
[20] See id.
[21] This strategy is already employed in cases where the subject of the revenge porn is able to make a copyright claim in the media. See supra note 14. This proposal would extend this protection to cases where it is not possible for the subject to make such a copyright claim.