Internet Privacy Lawyer – California Revenge Porn Overview (Invasion of Privacy & IIED)

Introduction

Our intellectual property, entertainment, invasion of privacy law firm may be able to assist you if you are the victim of revenge porn or invasion of privacy on the internet.  There are many different angles to a revenge porn case, but the most important things are:

1.  Proving the intent to harm by the wrongdoer

2.  Showing damages

3.  Making sure there are assets to collect on

If you are the victim of an online revenge posting (sexual pictures or videos) fill out the form below to have your case reviewed.  We can help victims who were damaged, harmed, or injured due to the intentional tortious actions of an ex-husband, ex-boyfriend, etc.

California Privacy Torts Explained

Click here to learn more about the 4 Privacy Torts under California law.  There could be several privacy torts implicated in one episode of revenge form posting by an ex-boyfriend for example.  One of the most important concerns is getting the photo immediately taken down to preserve your privacy and reputation and to try to prevent intentional infliction of emotional distress.  This blog talks about these items and the DMCA take down law.

California's revenge porn law (“non-consensual pornography”)

California's “revenge porn” law can be found under the section for disorderly conduct – California Penal Code 647(j)(4).

This is an important section of the law and prohibits several things:

(j)(1) A person who looks through a hole or opening, into, or otherwise views, by means of any instrumentality, including, but not limited to, a periscope, telescope, binoculars, camera, motion picture camera, camcorder, or mobile phone, the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of a person or persons inside. This subdivision does not apply to those areas of a private business used to count currency or other negotiable instruments. (for example, the guy at the gym who peeks into the tanning booth to get his thrills)

(2) A person who uses a concealed camcorder, motion picture camera, or photographic camera of any type, to secretly videotape, film, photograph, or record by electronic means, another, identifiable person under or through the clothing being worn by that other person, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, with the intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of that person and invade the privacy of that other person, under circumstances in which the other person has a reasonable expectation of privacy. (For example, a buy has a video camera on his shoe looking up a women's dress)

(3)(A) A person who uses a concealed camcorder, motion picture camera, or photographic camera of any type, to secretly videotape, film, photograph, or record by electronic means, another, identifiable person who may be in a state of full or partial undress, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, in the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that other person.

(B) Neither of the following is a defense to the crime specified in this paragraph:

(i) The defendant was a cohabitant, landlord, tenant, cotenant, employer, employee, or business partner or associate of the victim, or an agent of any of these.

(ii) The victim was not in a state of full or partial undress.

(4)(A) A person who intentionally distributes the image of the intimate body part or parts of another identifiable person, or an image of the person depicted engaged in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation by the person depicted or in which the person depicted participates, under circumstances in which the persons agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress.

(B) A person intentionally distributes an image described in subparagraph (A) when he or she personally distributes the image, or arranges, specifically requests, or intentionally causes another person to distribute that image.

(C) As used in this paragraph, “intimate body part” means any portion of the genitals, the anus 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 clearly visible through clothing.

(D) It shall not be a violation of this paragraph to distribute an image described in subparagraph (A) if any of the following applies:

(i) The distribution is made in the course of reporting an unlawful activity.

(ii) The distribution is made in compliance with a subpoena or other court order for use in a legal proceeding.

(iii) The distribution is made in the course of a lawful public proceeding.

There are a lot of factual questions that have to be determined if you think there is a case of invasion of privacy on the internet through posting of unwanted or secret pron video tapes.

Electronic Harassment aka Cyber Harassment (“Indirect Harassment”)

Another law that may come into play where indecent material is posted on the internet (with the intent to put someone in fear for their safety) is California Civil Code Section 653.2

(a) Every person who, with intent to place another person in reasonable fear for his or her safety, or the safety of the other person's immediate family, by means of an electronic communication device, and without consent of the other person, and for the purpose of imminently causing that other person unwanted physical contact, injury, or harassment, by a third party, electronically distributes, publishes, e-mails, hyperlinks, or makes available for downloading, personal identifying information, including, but not limited to, a digital image of another person, or an electronic message of a harassing nature about another person, which would be likely to incite or produce that unlawful action, is guilty of a misdemeanor punishable by up to one year in a county jail, by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment.

(b) For purposes of this section, “electronic communication device” includes, but is not limited to:

-telephones

-cell phones

-computers

-Internet Web pages or sites

-Internet phones

-hybrid cellular/Internet/wireless devices

-personal digital assistants (PDAs)

-video recorders

-fax machines,

-pagers

“Electronic communication” has the same meaning as the term is defined in Section 2510(12) of Title 18 of the United States Code.

(c) For purposes of this section, the following terms apply:

(1) “Harassment” means a knowing and willful course of conduct directed at a specific person that a reasonable person would consider as seriously alarming, seriously annoying, seriously tormenting, or seriously terrorizing the person and that serves no legitimate purpose.

(2) “Of a harassing nature” means of a nature that a reasonable person would consider as seriously alarming, seriously annoying, seriously tormenting, or seriously terrorizing of the person and that serves no legitimate purpose.

A violation of this law is a misdemeanor.   If you suffered serious damages you may be entitled to seek compensation against the perpetrator.

Intentional Infliction of Emotional Distress

Another cause of action that may arise where you have an ex posting sexual related pron videos or photographs on the internet is the intentional infliction of emotional distress.  To learn more about this tort under California law watch this video.

VIDEO:  Click on the photo above to watch our video.  Make sure to SUBSCRIBE to get our great legal videos.  We are now over 10,000 subscribers.

What to do if you are the victim of an internet revenge porn posting?

If you find a sexual post on the internet posted from your ex-boyfriend, girlfriend, or spouse, contact our office to discuss your legal rights.  If a defendant has assets to go after we may be able to pursue a privacy infringement case and for violation of the California revenge porn law.  If we can take your case, we may pursue some or all of the following options:

1. Contact a California or Arizona lawyer to discuss strategy
2. Send cease and desist letters to the perpetrator
3. If the video, film, or photography is owned by you, we can seek to send DMCA “takedown” letters to various companies that may be hosting the content (ex. instagram, facebook, twitter, or some other website)
4. We can refer you to SEO “reputation management companies” that can help drive down the negative post boosting your image with positive posts
5. We can help seek to de-index the offending material from Google, Yahoo!, and other search engines
6. We can file a right of privacy lawsuit and/or intentional infliction of emotional distress case

Contact us for more information or email me at the email address on the right side of this page.  We can review both California and Arizona privacy intrusion cases.

Arizona Law

Unlawful distribution of images depicting states of nudity or specific sexual activities. If disclosed by electronic means, Class 4 felony. If threatens to disclose but does not disclose, Class 1 Misdemeanor Arizona Revised Statutes, 13-1425.

This section states:

A. It is unlawful for a person to intentionally disclose an image of another person who is identifiable from the image itself or from information displayed in connection with the image if all of the following apply:

1. The person in the image is depicted in a state of nudity or is engaged in specific sexual activities.

2. The depicted person has a reasonable expectation of privacy.  Evidence that a person has sent an image to another person using an electronic device does not, on its own, remove the person's reasonable expectation of privacy for that image.

3. The image is disclosed with the intent to harm, harass, intimidate, threaten or coerce the depicted person.

B. This section does not apply to any of the following:

1. The reporting of unlawful conduct.

2. Lawful and common practices of law enforcement, criminal reporting, legal proceedings or medical treatment.

3. Images involving voluntary exposure in a public or commercial setting.

4. An interactive computer service, as defined in 47 United States Code section 230(f)(2), or an information service, as defined in 47 United States Code section 153, with regard to content wholly provided by another party.

5. Any disclosure that is made with the consent of the person who is depicted in the image.

C. A violation of this section is a class 5 felony, except that a violation of this section is a:

1. Class 4 felony if the image is disclosed by electronic means.

2. Class 1 misdemeanor if a person threatens to disclose but does not disclose an image that if disclosed would be a violation of this section.

D. For the purposes of this section:

1. “Disclose” means display, distribute, publish, advertise or offer.

2. “Disclosed by electronic means” means delivery to an e-mail address, mobile device, tablet or other electronic device and includes disclosure on a website.

3. “Harm” means physical injury, financial injury or serious emotional distress.

4. “Image” means a photograph, videotape, film or digital recording.

5. “Reasonable expectation of privacy” means the person exhibits an actual expectation of privacy and the expectation is reasonable.

6. “Specific sexual activities” has the same meaning prescribed in section 11-811, subsection D, paragraph 18, subdivisions (a) and (b).

7. “State of nudity” has the same meaning prescribed in section 11-811, subsection D, paragraph 14, subdivision (a).

Can you sue Google, Bing, AOL or other online service provider?

Generally no.  Section 230 of the Online Decency Act provides immunity for website operators and Internet service providers that host user-generated content, including revenge porn. 

Overview of the DMCA letter - if you want to try to send your own.

The DMCA "takedown" letter can be a useful tool to get your porn video taken down, but you have to make sure you are following the requirements of a valid DMV takedown letter. If it is not deemed to be a valid DMCA letter (i.e. you are forgetting to include one or two important items, you may be delayed in trying to get your girlfriends pictures or videos removed which could further hurt your reputation online.

Here is what you need to be sure to consider, at a minimum:

The DMCA requires that all infringement claims must be in writing and must include the following information:

1. A physical or electronic signature of the copyright owner or the person authorized to act on its behalf;
2. A description of the copyrighted work claimed to have been infringed;
3. A description of the infringing material and information reasonably sufficient to permit to locate the material;
4. Your contact information, including your mailing address, telephone number and email;
5. A statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
6. A statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.

Failure to include all of the above-listed information may result in a delay of the processing of your complaint.

Can you sue the Online Service Provider?

Generally NO.  Online service providers have protections and safe harbors under Section 230 of Online Decency Act.

Cases in the News

1.  6.4 million dollar judgment

2.  California revenge porn law explained (good for athletes and others to know)

3. California makes "DeepFakes" illegal

Helpful websites

1.  CyberCivilRights.org ["CCRI provides emotional support, technical advice, and information to current victims of online abuse. Victims can reach out to CCRI through the Helpline or our website and receive support from a Helpline Counselor or a Victim Support Specialist." CCRI's Helpline (844-878-CCRI)

2.  Third Parent.com [company helps monitor / audit your child's online activities]

3.  WithoutMyConsent.org ["The resources found here are intended to empower individuals to stand up for their privacy rights and inspire meaningful debate about the internet, accountability, free speech, and the serious problem of online invasions of privacy"].

Contact a California Revenge Porn Law Firm (aka "non-consensual pornography")

To discuss your case in confidence, call us to discuss at (877) 276-5084.  If your video is copyrighted, there may be a case for willful copyright infringement.  You may be able to send a DMCA takedown notice.  If the video at issue uses your name, image or likeness for commercial purposes, there could be a California Right of Publicity case    If the image involves a "deep fake" call us to discuss.  We can also help defend these types of cases.  You can also fill in the form submission and have our IP attorney contact you.

Also, make sure to check out our Legal Scrub™ service that helps you identify and take down private, offending, or infringing materials on the internet.  We can also conduct publicly available information searches to help protect your kids from private photos and information being posted online, stop cyberbullying, and other related internet abuses.