Does Massachusetts have a remedy for revenge porn?

For many people, sending a naked picture of yourself to someone is an act of commitment. It shows the degree of affection and trust by sending a picture showing oneself in their most vulnerable exposure. Yet this act of trust can become a nightmare if this picture is posted on the internet. A posting of this nature is called “revenge porn.” It frequently occurs when the relationship terminates. Not only can a posting of this nature cause emotional distress, it can also cause financial harm as it can effect employment and future relationships. Wikipedia definesrevenge porn as “sexually explicit media that is publicly shared online without the consent of the pictured individual.” It includes selfies showing a person naked as well as explicit pictures of sexual conduct.

The best way to prevent revenge porn is to not create explicit pictures of yourself. If the relationship that is terminating is a marriage, then the parties may be able to obtain a court order prohibiting distribution of pictures. I have named such orders as “sexting restraining orders” and routinely include such language in my divorces. However, most people who are concerned with revenge porn are in the horrible position of trying to take action once a posting has occurred.

Some states have created laws that impose criminal penalties for revenge porn. Massachusetts has not created any law, civil or criminal, that specifically addresses revenge porn. Instead, a victim of revenge porn, must look to other remedies after their picture appears on the internet.

A civil lawsuit against the person who posted the pictures for damages can be filed. Such a suit can seek damages for intentional infliction of emotional distress or violation of a right of privacy. However, such a lawsuit can only result in a money award against the person who posted the information. If that person has no assets or files bankruptcy, the judgment may result in no recovery of money. A better way to proceed is to sue the web site that hosts the offending pictures.

Congress created broad protections for web site operators in the Communications Decency Act. However, web site operators are not protected against copyright violations. Under federal copyright law, a picture is the property of the person who created or took the picture. A selfie remains the property of the person who took the picture and not the person who received the picture in a text message. If a selfie appears on a web site, the web site operator can be sued to remove the picture as a violation of copyright law. Unless new laws are passed, this may be the only way to force the removal of the picture.

If you want to prevent revenge porn or find yourself the victim of revenge porn you should consult a lawyer as soon as possible to limit the damage.