When we hear the word “revenge” we often think about acting against someone for a wrong that they have committed. Merriam-Webster defines revenge as “aveng[ing] (oneself or another) usually by retaliating in kind or degree.” We can do our best to conjure up images of what revenge may look like, for any number of alleged offenses committed. The depiction is usually one that includes a sword, a war, or a well-calculated vindictive plan. However, in today’s society, the instant dissemination of information and advent of new technology, has individuals turning in their swords for a different kind of weapon in an effort to avenge an alleged wrong: social media platforms and other public forums on the internet.
In or around late July of 2019, New York’s Governor Cuomo, signed legislation which criminalizes the intentional dissemination of nonconsensual pornography/graphic images of others. In addition to criminal repercussions, the law opened the door for civil suits, allowing victims to file complaints which demand money and can further order websites to remove illicit images. Notably, the law gives new meaning to discrimination, retaliation and a hostile work environment, especially when the perpetrator is a co-worker or a supervisor. However, in our opinion at L & D Law P.C., the new statutory protections have left significant loopholes, which may allow perpetrators and other revenge seeking individuals more leeway than the legislature and the public at large wanted.
According to the Cyber Civil Rights Initiatives research, roughly 80% of nonconsensual pornography is shared as means of entertainment and by strangers, in proportion to a ghosted date, one-night stand gone wrong, or a psychotic ex-boyfriend or girlfriend. To that end, the law’s loophole, as demonstrated by the above statistic, lies in a single word: intent. Since the NYS law frames the sharing of pornographic and lude images as an act of harassment, it follows that a perpetrator/defendant, must INTEND to cause the victim(s) harm.
For in or around five years, legislators in New York State groveled with each other over the language of the revenge porn bill, and undoubtedly were held up by lobbyists from large technology companies such as Google and Amazon; colloquially referred to as “Big Tech.” One can always expect companies like Google to pour millions of dollars into opposition to any legislation that promotes oversight of how the company regulates its content. However, with Google and other large platforms attempting to blur the lines between Publisher and Public Platform, New York State failed in their opportunity to finally stand up to Big Tech companies that place profits ahead of people; in this case, victims of revenge pornography. Specifically, as the bill came close to a vote, Google fought vigorously to include “intent” language, which further insulated them from any blame regarding potential violations of the revenge porn law. Oddly enough, companies like Google found unlikely allies including the ACLU, which argued in sum and substance that the new generation shares racy content as a social norm or as “social currency.”
However, it is perplexing to see the ACLU arguing on behalf of companies like Google, when the ACLU is usually the organization that fights to protect privacy as a fundamental civil liberty. Nevertheless, the new law will make it difficult for would-be Plaintiff/victims to attach any form of liability to companies such as Google or Facebook.
On the other hand, at least the law is a small step in the right direction which at a minimum, will give victims of revenge porn the voice they so desperately need. This is especially true in an employment law context where employers may try to hold employees accountable or take adverse employment actions against them, simply because pornographic or lude images were posted of them online. As it currently stands, an employer will no longer be able to retaliate or terminate an employee for such images being posted, which we at L & D Law see a big win for employees trying to stand up for themselves against harassment in the workplace. If you or someone you know, has been the victim of revenge porn, we encourage you to give us a call so that we can assess whether you have a viable claim.
