10 Comments

  1. John David Galt
    February 9, 2013 @ 10:50 pm

    I hope you’re making a joke, but in case you’re not —

    I submit that “revenge porn” is invasion of privacy, because the appearance of somebody’s naked body, whether appealing or not, is a fact that person is entitled to keep private.

    (Now if that person goes out on a nude beach in her birthday suit, that may or may not be a waiver, but that’s a whole nother question.)

    Reply

    • Mark W. Bennett
      February 9, 2013 @ 11:05 pm

      I am not making a joke.

      The person sharing the images has given up his privacy in the “appearance of his naked body” to a small extent. The trusted person publishing the images might be liable; a third party, not. The trusted person presumably knows the extent to which her license extends; the third party does not.

      In any case, there are unresolved tensions between free speech and privacy. “Invasion of privacy” is not a magical free-speech eraser.

      And pretty clearly, appearing nude in a public or semi-public place would be a waiver.

      Reply

      • John David Galt
        February 10, 2013 @ 3:08 pm

        Does that mean the likes of Craig Brittain and his “Is Anybody Down” site are protected? Or does his demand for money in order to take one’s picture down cross some other line?

      • Mark Bennett
        February 10, 2013 @ 5:27 pm

        I think that his demands for money and his representation that he is an independent lawyer cross a couple of other lines. Possible extortion, possible wire fraud.

  2. Josh Considine
    February 9, 2013 @ 11:04 pm

    Is “invasion of privacy” usually a category of unprotected speech? I hadn’t thought so, but IANAL.

    Reply

  3. Ross
    February 9, 2013 @ 11:12 pm

    In other words, be very careful who you send, or let take, potentially embarrassing photos. You might have a civil case, assuming you can prove damages, but there’s nothing criminal.

    Reply

  4. Ric Moore
    February 10, 2013 @ 2:27 pm

    Those dentures made me HOT! Ric

    Reply

  5. Jay
    February 10, 2013 @ 3:49 pm

    However, 2257’s requirements don’t stop within the statute, and are further discussed in 28 C.F.R § 75 et seq. That’s where the issue gets quite a bit murkier. Even then, depending on how the site’s upload tools and procedures work they may slip into the “selection” exception from 2257 exemption that you quote above.

    I’m not defending 2257, nor am I justifying these websites’ existence. 18 U.S.C. § 2257 operates in a manner that creates a lot of grey area as a pretext for its invasive enforcement mechanisms.

    Reply

  6. Jason Van Dyke
    October 28, 2013 @ 7:59 pm

    I disagree with the notion that persons have the right to transmit nude photographs of others without that person’s consent. I have always maintained (as I did in my interview with Business Insider – although they left that part out) that it is never a good idea to transmit naked pictures of yourself to anyone. This is especially true over the Internet. In the case of PinkMeth, the conduct we complained of in our lawsuit was more than just posting pictures. The pictures were methodically cataloged by name, city, and state. Users could post comments about the photograph (typically obscene). The website linked to the victim’s Facebook profile which set them up for further harassment. The First Amendment is not an unlimited right with respect to revenge porn. Just as Mr. Randazza said (and I may be paraphrasing here): “Just because a woman consents to getting fucked does not mean that everyone gets to fuck her.” I agree with him and will continue representing victims of these websites.

    Reply

    • Mark Bennett
      October 28, 2013 @ 8:19 pm

      You may be right, but “I disagree with the notion” is not an argument.

      Reply

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