A bill passed earlier this Summer by the State of California Senate could potentially subject individuals, within that State, to criminal prosecution for the unauthorized online posting of “explicit” user-generated photos and videos (the practice otherwise known as “revenge porn”). If passed and signed into law, the bill could potentially pit the rights of victims against people favoring free expression. Advocates on both sides of the legal argument vary on whether existing statutes are extensive enough to warrant the enactment of a new law targeting such specific behavior.
The fundamental issue for determining whether revenge porn should be a criminal offense turns on (1) what a person defines as a “reasonable expectation” of privacy; and (2) content that is meant for public dissemination – thereby according First Amendment protections.
As The New York Times readily points out in its Blog page, “[c]omplicating matters, nonconsensual pornography, as the practice is sometimes called, doesn’t involve only a victim and a perpetrator. One person might record the image with the subject’s consent and post without consent, while another entity can host it – several Web sites specialize in doing just that – and many other Internet users can in turn spread that image far and wide in a matter of hours, or less.” The “viral” effect can take an otherwise benign, obscure website, and turn the picture into something greater than it would have been had the photo not gone viral.