revenge porn

'Revenge porn' law passes, but doesn't cover photos shared by victims

Oct. 2, 2013 at 3:30 PM ET

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A bill banning "revenge porn" — nude or sexual photos, generally of former wives or girlfriends, posted online by an angry ex — has been signed into law by California's governor, but the chief advocate for the legislation says it doesn't go far enough to help victims.

The law makes it a misdemeanor to post nude photos of someone else online without their permission, and the person posting the photos or videos must have done so with the intent of causing emotional distress or humiliation. A conviction could result in six months in jail and a $1,000 fine.

Holly Jacobs, a Florida woman who founded End Revenge Porn after her own nightmare with the issue began more than four years ago, said the law is an "encouraging first step," but doesn't do enough to protect victims whose "selfies," photos of themselves, were shared with exes.  

Almost four out of five photos that are posted online of victims by vengeful exes are photos that the victims had shared with their exes, and were meant only for their eyes, Jacobs said in a statement. The California law "only addresses images taken or recorded by other individuals, which means that it fails to cover 'self-shots,' " she said. 

While some might think, well, if you don't want such shots posted, don't take those kind of photos, Jacobs said previously that's "just a new version of victim blaming," and that many people don't realize such sexting photos are "the real world," especially for a younger generation.

Allowing angry exes to post nude photos of ex-lovers, along with personal information about the victims, has become a cottage industry for some websites. The sites themselves are protected from liability because of Section 230 of the federal Communications Decency Act, which says that websites and Internet service providers cannot be treated as a publisher for "any information provided by another information content provider."

The victim who finds his or her compromising "selfie" online may be able to file a take-down notice to the hosting website, via the federal Digital Millennium Copyright Act which deems the photographer the owner of the picture. Charging the poster with a copyright violation is an arduous process however, and small comfort to the victim whose image is likely a permanent part of cyberspace.

The state that comes closest to California's legislation is New Jersey, which since 2003 has had an invasion-of-privacy law aimed at video voyeurs, people who secretly videotape others naked or having sex without their consent. Other states that may consider revenge porn legislation include Florida, Texas, Wisconsin and Georgia.

Andrew Sellars, staff attorney with the Digital Media Law Project at the Berkman Center for Internet & Society at Harvard University, told NBC News that prosecutors will need to be judicious in terms of the kinds of cases they go after, especially if there is a public interest at stake.

"There are times when intimate, private photographs would be of legitimate interest to the public, such as when they are taken by public officials in a way that calls into question their fitness for office," he said.

"We may think that prosecutors would never dare to bring such a charge, but experience suggests we should not be so naive, and in any event the Supreme Court does not let a law stand against a First Amendment challenge just because the government promises to use it responsibly."

California Gov. Jerry Brown signed the bill, SB 255, into law Tuesday, and Jacobs commended state Sen. Anthony Cannella, R-Ceres, for authoring the legislation. 

"The intent of the law is to provide law enforcement with a tool to begin to combat revenge porn," Cannella said in a statement to NBC News. "I worked with our policy staff and my colleagues in the Legislature to craft the strongest bill possible. I look forward to continuing work next year in order to strengthen the law."

In the meantime, Jacobs said in a statement her group hopes to continue working with Cannella as well. "This issue will only get bigger, and the laws will catch up with technology when the public decides it has seen enough tragedy as a result of revenge porn."

This story was updated at 3:30 p.m. ET Wednesday.

Video: Holly Jacobs’ life was turned upside down when intimate photos she had sent her ex-boyfriend turned up online. She is now speaking out about her ordeal, hoping to alert others to the dangers of “revenge porn,” which experts say is more common than you might think.

Video: The Cycle hosts backspin on the rising trend of “revenge porn” and the fact that, whether we want to believe it or not, anything you do in your digital life is forever.

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