New York Court OKs Revenge Porn; Will the Legislature Act?

Revenge porn is now legal in New York. The issue occurs when a person posts nude photographs of an ex-lover on the internet as a way to embarrass and degrade the ex. The photographs are often exchanged willingly while love blossoms, but when that same love wilts, the images change from intimate gifts to dangerous weapons that can seriously damage a person’s reputation.

For example, in the New York case People v. Barber, the defendant tweeted a nude photograph of his ex-girlfriend and shared it with her sister and employer. While the court acknowledged the “reprehensible” nature of the defendant’s conduct, it nonetheless found him innocent of any crime.

The problem concerns the specific language of New York’s law. In most states, you cannot take a nude photograph of a person without that person’s knowledge or consent. This rule does not apply, however, to situations where a person willingly gives a naked photograph to another. The New York court latched onto this distinction and dismissed the case.

While this particular dismissal was based on the language of the statute, some critics wonder if legislation specifically targeting revenge porn might violate freedom of speech rights. The American Civil Liberties Union opposed a draft to California’s revenge porn bill on the grounds that “the posting of otherwise lawful speech or images even if offensive or emotionally distressing is constitutionally protected. The speech must constitute a true threat or violate another otherwise lawful criminal law, such as stalking or harassment statute, in order to be made illegal.” Those who oppose a statute criminalizing revenge porn highlight the fact that the photographs were freely given and are, in essence, the property of the receiver to do as he wishes.

In contrast, another angle to the problem concerns the ubiquity and permanence of the internet and anything posted to it. Search engines allow anyone to instantly access everything ever posted about a person. Employers, colleagues, and friends all have the ability to discover information about you posted online. This makes a naked photograph in the hands of a scornful ex-flame particularly dangerous and powerful. Put simply: there is no real way to remove something from the internet, and search engines organize what is on the internet with terrifying accurateness and efficiency. An individual risks permanent reputational damage from revenge porn.

While anyone can suffer from revenge porn, the pernicious practice more often negatively affects women. Drafters of revenge porn statutes must also analyze this issue focusing on how it relates to sexual harassment and the discrimination of women. The issue does not affect men in the same way, and drafters need to scrutinize whether or not their stance on revenge porn has any latent sexist, misogynistic, or patriarchal impulses.

Revenge porn constitutes a particularly modern problem. Numerous themes percolate, including changing mores, technological advancement, sexual harassment and discrimination, freedom of speech, and the chaos of unreciprocated love. In New York, the court has signaled to the legislature to fix the problem. Whether and how the state chooses to draft a statute speaks to which themes the state decides to value.

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Imran Ahmed is a writer living in New York City whose blog explores the legal implications of social media and the internet. Contact him via email here.

Imran Ahmed

Imran Ahmed is a writer living in New York. Contact Imran at staff@LawStreetMedia.com.