How to Fight Revenge Porn

Cross-posted from The Atlantic

Victims of non-consensual pornography, sometimes called "revenge porn," often receive little help from the law. Many who to try to fight the malicious and unconsented sharing of their explicit photos or videos cannot overcome the numerous hurdles to vindication. Plaintiffs like Holly Jacobs, who, according to her lawyer, is the first Floridian to sue an ex for their alleged distribution of non-consensual pornography, are told that offending websites receive broad immunity, that it's hard to identify the individual wrongdoers, and that once your explicit photo is shared with others, it is no longer "private."

This narrative is common but incomplete. Many players in these disputes have discounted the fact that non-consensual pornography is often, at base, a brazen and legally actionable breach of confidence. This underestimation is unfortunate because confidentiality can offer a viable cause of action for victims as well as a better way to talk about an intimate partner's duty of protection.

The most common civil remedies for non-consensual pornography are ineffective or ill-fitting. Even for those who have suffered greatly, the financial and emotional cost of a lawsuit is often too much to justify fighting back. The Streisand Effect discourages many would-be plaintiffs from filing a lawsuit out of fear of bringing even more unwanted attention to them. For those willing to bear the cost of enforcing their rights, successful claims are still extremely elusive.

For example, Holly Jacobs brought two causes of action based upon theories of public disclosure of private facts and the intentional infliction of emotional distress. These claims are notoriously difficult to prove. Many courts don't consider photos that have been shared with others to be private. The First Amendment has also significantly limited these remedies because they punish people for their expression. Copyright law has been somewhat effective in the removal of unconsented media (remember that YouTube video you can't access anymore?). However, copyright is at best a kludge available only to those who own the intellectual property rights to a photo or video, usually limited to media like "selfies."

There is no easy answer to this problem. Meaningful resolution of it will likely require a number of different incremental changes: new legislation, modified common law causes of action, education and, ultimately, changes in social norms. Some organizations, including Without My Consent, have already started by educating victims, attorneys, and the public. Statutes to criminalize non-consensual pornography are being considered at the state level. Many of these solutions are promising, but most solutions with any hope of being successful will take time.

But one legal argument has somehow failed to make a major appearance in revenge-porn cases: confidentiality. Broadly speaking, to confide is "to give to the care or protection of another," and it is often the defining trait of explicit media shared between romantic partners. Simply put, explicit images and videos are unlikely to be created or shared with an intimate without some expectation or implication of confidence. This reality has been acknowledged but underutilized in the dominant narrative on non-consensual pornography. In contrast to new rights that would be created by proposed "anti-revenge porn" laws, confidentiality is already a well-established legal concept. It is older than all of the privacy torts and statutes in America.

Nevertheless, the concept has languished in law and our conversations about social relationships. Arguably, there are several reasons for this. Confidentiality agreements are socially awkward and provide for limited damages. Traditionally confidential relationships are rare, usually being limited to professional relationships like those between doctors and patients and attorneys and clients. Perhaps most significantly, confidentiality law doesn't directly restrict the most injurious actor in the debate -- websites. While romantic partners who receive explicit materials might be prohibited from further disclosure, websites and other third-party recipients are not bound by the same rules because they presumably have no relationship with the person depicted in the media.

But one of the most likely reasons confidentiality law has not played a larger role in the modern privacy debate is that most of our social communications are not conditioned upon an express or even implied promise of confidentiality. It is difficult to imagine, though, a more illustrative context of implied confidences than explicit material shared between intimates. Indeed, this argument has been made for some time now. Yet confidentiality law has remained a relatively limited and insignificant remedy in the larger patchwork of privacy jurisprudence.

We should have a better national dialogue about a romantic partner's obligations of confidentiality. Salient norms of confidentiality would strengthen our relationships as well as the legal remedies for those whose trust has been betrayed. Notably, confidentiality law is not as problematic under the First Amendment as legislation or other tort remedies. Instead of prohibiting a certain kind of speech, confidentially law enforces express or implied promises and shared expectations. The tort of breach of confidentiality is currently very limited in scope, but could be made much more robust to sit alongside the more commonly asserted privacy torts. Under an "inducement to breach confidentiality" theory, it is even possible that certain websites would not be able to take full advantage of the immunity typically provided by Section 230 of the Communications Decency Act.

So how are individuals in a romantic relationship supposed to determine whether information is confidential? The best practice has always been to secure an explicit promise of confidentiality. But that's not always feasible. Confidentiality can also be implied, though determining when it is is a little more complicated. Fortunately, courts have left clues in previous court cases that will help people determine when information should be considered confidential. These clues are consistent with Helen Nissenbaum's theory of privacy as contextual integrity, which has seemingly been embraced by the FTC, among others.

Based on case law, it seems that there are a few important aspects in any given context to consider. Developed relationships are more likely to be confidential than brief or shallow ones. Confidentiality is more likely to be found when it is supported by contextual norms and when the information disclosed is sensitive. Courts consider whether the victim requested confidentiality and, even more importantly, whether the recipient promised not to disclose the information. These promises can be vague or even implied. The important question is whether a confidence was apparent before the sensitive information was shared. With the exception of an explicit promise of confidentiality, none of these considerations are dispositive, but rather something to be considered as part of a whole.

Confidentiality is no panacea. Some victims might incorrectly assume a confidence where legally none exists. Confidentiality doesn't cover surreptitious recordings from peeping toms and the like. There is only a limited recovery available for broken contracts of confidentiality. But the law can evolve over time. If the confidential nature of intimate relationships becomes more prominent in society and enough victims assert their rights, both courts and distributors will receive a clear signal that non-consensual pornography is actionable under one of the most basic and important concepts in the history of American privacy.

At its core, confidentiality is about people trusting other people to protect them by keeping certain information close. Trust leaves people vulnerable because the choice of whether to reveal information is no longer theirs alone. This loss of control and reliance on others is precisely why the law is willing to enforce those promises and fortify those special relationships. Confidentiality should no longer be assumed away in favor of ineffective remedies. It should play a much more prominent role in the discussion surrounding non-consensual pornography. What kind of information could possibly be more confidential?