Who does California’s new revenge porn law actually protect?

California recently passed a new law criminalizing the posting of revenge porn. Revenge porn occurs when an individual, usually a former lover, post nude pictures or video taken during the course of the relationship of the other individual without that individuals consent. As the name implies, it’s usually done as an act of revenge after a particularly nasty fight or break-up.    If convicted under California’s new law individuals could face up to six months in jail or a $1,000 fine. The law only affects a very small portion of revenge porn victims.  Here’s what the law doesn’t protect:

It won’t protect your selfies.

Did you take the picture yourself? Unfortunately this new law only applies to photos taken by someone else. The good news is, however, if you took the photo you automatically have a copyright in that photo and may be able to file a DMCA takedown notice to get the picture taken down.  If you need help sending a takedown notice feel free to contact us.

It won’t protect you from most hackers.

California’s new law only applies to photos taken by third parties, so it won’t protect you from any third parties that hack into your computer to get photos. However there are multitudes of other state and federal laws that can punish hackers who do so.

However, if a hacker were to hack into your laptop or mobile device camera and take pictures remotely, like a hacker recently did to Miss Teen USA, Cassidy Wolf, the new law would protect you.

It won’t protect you unless you can prove that you agreed or understood that the photos would remain private.

Talk about a he said/she said situation. In order for someone to be convicted under this law you have to prove that both parties agreed or at least understood that the photos would remain private. Unless both parties stop to sign a non-disclosure agreement, it will be extremely difficult to prove this understanding in court.

It won’t protect you unless you can prove intent to cause emotional distress and actual emotional distress.

Both the intent to cause and actual emotional distress are exceptionally hard to prove. For example, if an individual posted the photo because they thought it would be funny, that would not be enough to be convicted under the law. Similarly proving emotional distress requires documented physical signs of emotional distress that are directly linked to the uploading of photos. For example, if an individual who had a photo posted of them on the internet was upset, but not so upset that they had been to a doctor for physical symptoms like severe weight loss, insomnia, lethargy, this law may not apply.  With such a high bar it will be very hard to convict anyone under this law.

It can’t punish individuals outside the state of California

Keep in mind this law is only a California law so it is limited in who it can actually punish. Unfortunately the law fails to clarify if to be convicted the picture must be taken in California, shared on a site in California or even if the victim must be a California resident.

The bottom line is this law does little to actually protect revenge porn victims. The only bright side, if you can even call it that, is that the law will not impose liability on any sites that post or comment on revenge porn. While some may argue that sites that profit of this kind of porn should be punished it would have been very hard to narrowly tailor a law that would have only effected actual revenge porn sites and not sites that are sometimes used for revenge porn such as Facebook or YouTube. Moreover that law would also have to overcome CDA 230which is a federal law that already states that we don’t want sites that host user generated content to be responsible for embarrassing content on their sites. If this law had gone after websites it would have imposed exactly the type of liability that CDA 230 is meant to prevent.  

Sadly this law is, by and large, a waste of taxpayer time and money. Once again we encourage the State of California to stop trying to legislate the internet and spend more time focusing on badly needed reforms in other areas.

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