A 2017 report by the Cyber Civil Rights institute (CCRI) found that almost 13 percent of people either have been the victim of revenge pornography (hereinafter “revenge porn”) or have been threatened with revenge porn.¹ Despite this, states are often ill equipped to deal with the issue, relying on a hodgepodge of ill-fitting statutes and common-law principles to protect individuals. Even where statutes exist, lawmakers often rely on commonly held misconceptions concerning victimhood while drafting, leaving a legal framework that might not apply to most revenge porn victims.

Merriam Webster defines revenge porn as “sexually explicit images of a person posted online without that person’s consent, especially as a form of revenge or harassment.”² Although this definition is appropriate when one is selling news stories, it is too limited in scope to be of use here.

The core misconception, codified in Merriam Webster’s definition, is that revenge porn is shared “especially as a form of revenge or harassment.” The data do not support this contention. A CCRI study found that a mere 11 percent of perpetrators shared intimate images for the purposes of revenge. Most perpetrators shared the images without malicious intent; they indicated that they had no intention of hurting the victim and just wanted to share the images with their friends.

Nitpicking the use of the term “revenge porn” may appear petty. However, words do matter. The misconception that revenge porn is always about revenge is problematic. When lawmakers write statutes to protect victims, they often draft legislation that requires motives that most perpetrators simply do not have. Even using the term “revenge porn” feeds that misconception.

As such, I (and many others) prefer the term nonconsensual pornography (NCP). While the term may not have the bite that revenge porn has, it more accurately represents what NCP is in practice. In a nutshell, NCP is intimate media that is created, obtained, or distributed without the subject’s consent.

Wisconsin Criminal Law – Defining Nonconsensual Pornography

The focus of this article is on the remedies available to a photo subject in civil court. However, understanding Wisconsin’s criminal law approach to NCP is important, because Wisconsin’s civil statutes contain a cause of action that is based entirely on the definitions contained within the criminal code.

Wisconsin Statutes section 942.09 (“Representations depicting nudity”) makes it a felony to “capture an intimate representation without the consent of a person under circumstances in which he or she has a reasonable expectation of privacy, if the actor knows or has reason to know that the person who is depicted does not consent to the capture of the intimate representation.” Section 942.09 also makes it a crime to make a reproduction of or possess, distribute, or exhibit a representation if the perpetrator knows or has reason to know that it was captured without the consent of the depicted person.

Wisconsin’s criminal statute also addresses the nonconsensual posting and publishing of intimate representations that were consensually created. This is important. Many of the intimate representations that end up shared online were created consensually. However, that consent is most often limited to personal, private possession by the recipient. If the recipient of intimate, consensually created intimate images exceeds the scope of that consent, he or she is criminally liable if he or she knows or has reason to know that the photo subject would not consent.

Finally, Wisconsin addresses third-party sharing. Here, the statute offers a distinction between an involved party and an uninvolved one. For criminal liability to attach to a third party, the third party must know that the image is a private representation.

Distinctly and appropriately lacking from the statute is motive. The Wisconsin legislature, in drafting the statute, did not make the mistake that New York made by requiring a perpetrator to intend to “cause harm to the emotional, financial, or physical welfare of another person.”³ As such, it is possible for a perpetrator to be criminally liable under Wis. Stat. section 942.09 even if, as is often the case, he or she bears the photo subject no ill will.

Privacy Torts in Wisconsin – A Hidden Gem

At first glance, Wisconsin appears to lack a statute that offers the victims of NCP an explicit cause of action. However, appearances can be deceiving. Within Wisconsin’s right of privacy statute, Wis. Stat. section 995.50, is a powerful provision that specifically defines any act prohibited by the representations-depicting-nudity statute, Wis. Stat. 942.09, as an invasion of privacy subject to relief.

Under Wisconsin’s right of privacy statute, victims of NCP are entitled to equitable relief to prevent and restrain the invasion of privacy, compensatory damages, and reasonable attorney fees. This offers victims a powerful tool they can use to combat perpetrators.

NCP is intimate media that is created, obtained, or distributed without the subject’s consent.

But what about online service providers? An online service provider is, essentially, anyone who provides a forum through which third parties can create and post content. Although it may appear, at first glance, that there is an opportunity for relief from these third parties under the theories of secondary liability, section 230 of the Communications Decency Act (CDA), 470 U.S.C. § 230, shields these third-party service providers from liability for content published on their site by users or other content providers. In effect, sites hosting or republishing third-party content are by and large immune to liability.

Copyright Law – A Federal Cause of Action

One of the most powerful tools a photo subject has in fighting NCP is federal copyright law. Federal copyright law protects all original works of authorship – including the creation of intimate representations.

While the intricacies of copyright law are beyond the scope of this article, a brief refresher is in order. Copyright protects “original works of authorship fixed in any tangible medium of expression” and includes pictures, audiovisual works, and sound recordings.⁴ Creative works, which intimate representations undoubtedly are, are protected upon creation. Therefore, lawyers may find that pursuing a claim for copyright infringement will serve as both a means of obtaining compensatory damages for the photo subject and as leverage toward getting the intimate images removed by the infringing party.

Additionally, the Digital Millennium Copyright Act (DMCA) requires service providers – encompassing internet providers, websites, and search engines among many others – to provide a process through which copyright holders may demand removal of their works of authorship that have been illegally distributed.⁵ This is known, colloquially, as a DMCA takedown request. While the process is not necessarily easy, it is a powerful, effective, and straightforward way to get content removed for websites that are subject to U.S. law.

One of the most powerful tools a photo subject has in fighting NCP is federal copyright law.

Of course, savvy readers have already identified the Achilles heel with using copyright law to fight NCP: The photo subject must have created the content, or the rights to the work must have been transferred to the photo subject. This means that for content created by someone else, copyright protections only apply if that person is willing to cooperate. In some circumstances, this may not be an issue. If the other party’s phone or computer was compromised, sharing was accidental, or they did not realize the consequences of their actions at the time, they may be amenable to righting the wrong. If they created or distributed the images volitionally, however, the copyright angle may be out of reach.

Recent developments, however, suggest that some courts are willing to forcibly transfer the copyright associated with NCP to the photo subjects, which would make the process of DMCA takedowns more reliable. A California Superior Court judge recently ordered the transfer of copyrights associated with 22 photo subjects’ NCP; this indicates that it might be worthwhile to argue for the forcible transfer of a perpetrator’s authorship rights.

Intentional Infliction of Emotional Distress – A Distant Third Option

Finally, Wisconsin recognizes the tort of intentional infliction of emotional distress. To rise to the level of intentional infliction of emotional distress, conduct must be “extreme and outrageous … purposely undertaken by the defendant to inflict emotional harm upon the injured person” and the conduct must be intentional, extreme, outrageous, and the cause in fact of the injury. Additionally, the injured person must have suffered an “extreme disabling emotional response” to the injury severe enough to leave the person unable to function in other relationships.⁶

The argument that sharing an individual’s intimate content is extreme and outrageous is relatively easy to make. Alas, intentional infliction of emotional distress is not as well suited as it first appears because it requires the perpetrator to intend to harm the photo subject. As discussed above, most perpetrators are not seeking to harm the photo subject, making this tort claim a less than useful approach.

Explaining to the client that the conclusion of a lawsuit will not mean that the content will be gone forever is a necessary, although difficult, conversation.

Another difficulty is the necessity of proving that the photo subject’s response to the distribution of his or her NCP is or was “extremely disabling.” Being the victim of NCP is inarguably traumatic, but Wisconsin set the bar for intentional infliction of emotional distress rather high, limiting its usefulness further.

Ultimately, intentional infliction of emotional distress may be a useful alternative theory of entitlement to relief for situations in which intimate representations were shared for the purposes of causing emotional harm, as is the case when content is shared for the purposes of harassment or revenge. Outside of that context, however, it offers little to NCP victims when the motives do not fall within the narrow, predefined parameters required by law.

Challenges – Practical and Pragmatic

To Catch a Perpetrator. In a typical tort case, the defendant is relatively easy to identify. Unfortunately, this is not always the case when it comes to NCP. If the perpetrator cannot be identified, engaging the services of information security professionals may be advisable. Lawyers often lack the skills required to effectively identify the person or persons responsible, especially when redistribution is involved.

Privacy for the Photo Subject. Wisconsin believes in open access to data. This is a noble goal, but for individuals who have already been traumatized, the thought of having their name and contact information associated with a lawsuit for civil relief is a chilling one. It is not uncommon for photo subjects to suffer harassment after their content has been shared; the potential escalation of abuse might not be a risk they are willing to take. Wisconsin courts may be willing to redact the parties’ name and address, but the lawyer should have this conversation with the client up front. Lawyers also should be aware, and make the client aware, that some perpetrators may attempt to retaliate after a case has been filed, as this may affect the client’s willingness to pursue a case.

Imperfect Solutions. Lastly, both the lawyer and the client should understand that the likelihood of purging all the client’s intimate online content may be low. The success of content removal is, in some ways, a function of both time (how long has it been available) and scope of distribution. For content that has been widely distributed over a long period of time, it may be impossible to get it all removed. Content may also reappear elsewhere after having been purged; there are, unfortunately, communities built around sharing nonconsensual pornography. Thus, explaining to the client that the conclusion of a lawsuit will not mean that the content will be gone forever is a necessary, although difficult, conversation.

Conclusion

Representing individuals depicted in nonconsensual pornography is no easy task, but it is rewarding work. Victims often struggle to find relief, because many law enforcement agencies and lawyers are unaware of the myriad avenues of liability and relief. Through this article, I hope I have not only informed you, but have encouraged you to wear the mantle of advocate.

If you have any questions about the article, my inbox is always open. Feel free to email me at cpjd@pm.me and I’ll do my best to answer your questions.

Endnotes

¹ Asia A. Eaton et al., 2017 Nationwide Online Study of Nonconsensual Porn Victimization and Perpetration.

² Merriam-Webster.

³ N.Y. Penal Law § 245.15 (McKinney).

⁴ 17 U.S.C. § 102.

⁵ Digital Millennium Copyright Act, Pub. L. No. 105-304, Oct. 28, 1998, 112 Stat 2860.

⁶ Wright v. Hasley, 86 Wis. 2d 572, 576, 273 N.W.2d 319 (1979).