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$6.4 million judgment in revenge porn case is among largest ever
Shortly after a California woman and her boyfriend ended their relationship in 2013, he began to post sexual photographs and videos of her on pornography websites and to impersonate her in online dating forums, according to court documents.
In 2014, the woman, who was listed as Jane Doe in court documents to protect her identity, sued her former boyfriend, David K. Elam II, in U.S. District Court in California to get him to stop. Four years passed, until the court awarded her $6.4 million on April 4, in one of the biggest judgments ever in a so-called revenge porn case.
The case represents a battle line that is being drawn in an age when couples share intimate photographs and videos online — and then break up. It has also highlighted the complex web of state and federal laws that lawyers must navigate in revenge porn cases.
“The law in this area is imperfect and has been for some time,” said Elisa D’Amico, a lawyer who specializes in internet privacy and abuse and who worked on the case. It is, she added, “lagging behind technology.”
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The California case was one of the first lawsuits filed by the Cyber Civil Rights Legal Project, an initiative started in 2014 by K&L Gates, a Pittsburgh law firm, to litigate against online harassment and the nonconsensual posting of explicit material, often involving a former girlfriend or a spouse. D’Amico, in the firm’s Miami office, is a leader of the initiative.
Most states have laws that can be used to address revenge porn, but they vary widely. They include laws against criminal invasion of privacy, voyeurism, impersonation or fraud, harassment and stalking.
On the federal level, courses of action include copyright infringement and computer fraud and abuse claims, according to Without My Consent, a nonprofit organization that combats online invasions of privacy and breaks down the legal remedies that are possible in all 50 states.
In the California case, Doe already held the copyright to the sexually explicit images that she had shared privately with Elam because she took them herself. But when he started to publish them without her permission, she registered her ownership, which is a prerequisite for her to seek relief under federal copyright laws, D’Amico said.
“In many instances it is easier for a victim of revenge porn to have photos of herself and himself removed from a website if they own a copyright registration,” said Seth A. Gold, the lead lawyer on the Doe case.
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The judgment included $450,000 for copyright infringement, $3 million for severe emotional distress and $3 million for other damages, including stalking and online impersonation with intent to cause harm.
Elam, who also allegedly sent some of the explicit material to Doe’s acquaintances, could not be reached for comment.
The lawyers representing Elam withdrew in 2015, the judgment says. They did not respond to requests for comment.
At least 36 states have some laws that penalize the nonconsensual distribution of intimate images, representing a national patchwork of different standards and punishments for an activity that transcends borders.
“From a victim perspective, it can be exceedingly difficult to figure out,” Christine M. Gagnier, a lawyer and board member of Without My Consent, said. “The photograph is on the internet, so the harm is happening in a variety of places.”
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California, for example, has a nonconsensual pornography law with misdemeanor penalties, she said. The law was used in a case in which a former Playboy model was sentenced to community service in 2017 for secretly photographing a naked older woman in a Los Angeles gym and then posting the picture online.
Legislators have tried to fill the gaps in federal law. In 2016, Rep. Jackie Speier, D-Calif., introduced the Intimate Privacy Protection Act. A bipartisan second version, called the Enough Act, was introduced in both the House and Senate last November.
“We are continuing to gain support and are talking with the relevant committees about next steps,” said Josh Connolly, Speier’s chief of staff. “We treat this as a privacy violation, which we think it is. That is the heart of the violation, rather than what the intent is of the individual.”
The K&L initiative has counseled thousands of victims of sexual cyberharassment since it started, D’Amico said. In 2017, a couple in the Seattle area was awarded $8.9 million in a judgment against an Arizona man who posted sexual images they had shared with him online, and sent them to people they knew, court documents said.
“A lot of times individuals will engage in victim blaming,” D’Amico said. “But when images are shared within the confines of a private relationship, it is recognized that there is a right to privacy there.”
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This article originally appeared in The New York Times.
CHRISTINE HAUSER © 2018 The New York Times
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