The Center for Innovative Public Health Research tells us that one in 25 online Americans has been threatened with or had explicit images shared online without the subject’s consent.¹ Some of the harassers are vindictive ex-lovers, who post images shared in confidence. Others are hackers, who invade a victim’s computer, cloud-storage account, or webcam. Others place hidden cameras in public bathrooms, gym locker rooms, and other places, for sexual gratification. And others take and share sexually provocative photos of people in public settings without the subject’s knowledge.

The common law of torts gives victims of revenge porn² potential recourse via the torts of intentional infliction of emotional distress, negligent infliction of emotional distress, or intrusion upon seclusion. In 2016, Tennessee joined most states by enacting Tenn. Code Ann. § 39-17-318, which created the crime of “unlawful exposure” to address some aspects of nonconsensual porn. Violating this law is a Class A misdemeanor.

To the extent that the victim of revenge porn is a minor, a cause of action against the distributor of such images exists under certain circumstances. Known as “Masha’s Law,” 18 U.S.C. § 2255 creates a civil action if the defendant violates one or more of 14 federal laws concerning child pornography or exploitation and the plaintiff suffers an injury as a result. This law allows the recovery of actual damages or $150,000 liquidated damages, whichever is more, and punitive damages, as well as attorney’s fees and other litigation costs reasonably incurred.

Now, a new federal law effective October 1, 2022, expands the rights of revenge porn victims and certain others by creating a federal cause of action that includes adults harmed by such conduct. The Violence Against Women Act Reauthorization Act of 2022,³ signed into law on March 16, creates a new federal right of action⁴ for a “depicted individual”⁵ (regardless of gender) against one who, in or affecting interstate or foreign commerce, discloses the “intimate visual depiction”⁶ of the identifiable plaintiff without their consent. The legislation applies to adults and minors.⁷ Certain disclosures are not actionable, including but not limited to disclosure of “commercial pornographic content”⁸ unless produced “by force, fraud, misrepresentation, or coercion of the depicted individual.”⁹

The aggrieved individual may recover actual damages or $150,000 liquidated damages, plus reasonable attorney’s fees and litigation costs.¹⁰ The legislation does not address the recoverability of punitive damages, but permits the issuance of temporary restraining orders and injunctions to halt the display or disclosure of the visual depiction.¹¹

Importantly, the statute undermines defenses that would be commonly raised in response to a common law tort claim. It provides that (a) the plaintiff’s consent to creation of the depiction does not establish consent to its distribution; and (b) the disclosure by the plaintiff of the depiction to someone else does not establish that the person consented to further disclosure by the defendant.¹²

These provisions strengthen the plaintiff’s hand in litigation. Obviously, the law is not yet in effect, and thus has not been interpreted by the courts, but one can readily see that these provisions make summary judgment for the plaintiff relatively easy in many of these cases. The plaintiff would be entitled to summary judgment in his or her favor if he or she can prove (a) disclosure; (b) in or affecting interstate commerce; (c) of one or more intimate visual depictions of him or her; (d) in which he or she can be identified; (e) resulting in damages. “Consent to distribute” would be an affirmative defense, but the defendant would have to produce evidence other than the plaintiff’s consent to the creation of the depiction, or consensual disclosure to someone else, to create a genuine issue of material fact on that defense. This will be a difficult task. Therefore, in many cases, plaintiffs will prevail on the liability issue (if not all issues, if liquidated damages are elected) via summary judgment.

Obviously, the establishment of liquidated damages and recovery of attorney’s fees and litigation expenses also shift the balance of power in this type of litigation. Actual damages still must be demonstrated, but the concern of quantifying those damages in a substantial amount may be avoided if the plaintiff is willing to accept liquidated damages.

The ability to recover damages from a wrongdoer remains an issue, but there was no way that Congress could address that issue. While some, or perhaps most, of these wrongdoers will be judgment-proof, there are people who engage in such conduct who have more money than sense.

Thus, the new legislation adds yet another arrow to the quiver of the tort lawyer representing an adult victim of revenge porn. Indeed, the liquidated damages and attorney’s fee provision, coupled with the language substantially impairing the ubiquitous “consent” defense, makes this new law the legal equivalent of the 6.5 BM arrow.¹³ |||

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JOHN A. DAY is a plaintiff’s personal injury and wrongful death lawyer with his principal office in Brentwood.  He does not own a crossbow and, indeed, has never watched Braveheart.

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NOTES

1. Amanda Lenhart, et al., Nonconsensual Image Sharing, DATA & SOC’Y (Dec. 13, 2016), datasociety.net/library/
nonconsensual-image-sharing.

2. “Revenge porn” is the sharing of explicit or sexual images or videos without the consent of the person in the image. As used in its broadest sense (as it is used herein), the visual depictions may have been obtained surreptitiously (often called nonconsensual pornography) or may have been provided by the depicted person with the explicit or implicit understanding that they were not be shared with others.

3.  Violence Against Women Act Reauthorization Act of 2022, S. 3623, 117th Cong. (2022), available at www.congress.gov/bill/117th-congress/senate-bill/3623/text?r=1&s=1#toc-id58109d2358e4456298977de2e1434f71.

4. Id. § 1309(b)(1)(A).

5. Id. § 1309(a)(3) (“The term ‘depicted individual’ means an individual whose body appears in whole or in part in an intimate visual depiction and who is identifiable by virtue of the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature, or from information displayed in connection with the visual depiction.”).

6. Id. § 1309(a)(5).

7. Id. § 1309(b)(1).

8. Id. § 1309(a)(1).

9. Id. § 1309(b)(4)(A).

10. Id. § 1309(b)(3)(A)(i).

11. Id. § 1309(b)(3)(A)(ii).

12. Id. § 1309(b)(2).

13. The 6.5 BM is an arrow used with high-performance crossbows. Made by Texas Heart Shot Industries LLC, the spring-loaded two-blade mechanical broadhead sports a 6.5 inch cutting diameter, stainless steel blades and titanium ferrule. “BM” stands for “BleedMore.”