“Revenge porn” is the sexually explicit portrayal of someone which is distributed without that person’s consent. The material may be used to blackmail the subject or to coerce the person in some way. In the wake of civil lawsuits and the increasing numbers of reported incidents, legislation has been passed in a number of countries and U.S. jurisdictions to criminalize revenge porn, but legal approaches have varied.

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The term “revenge porn” usually means the uploading of sexually explicit images to humiliate and intimidate the subject. Images typically identify the pictured individual and may even include links to social media profiles, home addresses, and workplaces. Victims can have their lives ruined, with some victims of revenge porn having reportedly lost their jobs and finding themselves in effect unemployable.

Those who post revenge porn online could now go to prison in the state of Arizona. Governor Doug Ducey signed the new “revenge porn” legislation in March, and it went into effect immediately. The new statute replaces a 2014 law that was put on hold by a federal judge because of a constitutional challenge. Under the new Arizona law, photographic images would have to be shared “with the intent to harm” in order for the person posting the images to be convicted of a felony. The Arizona House and Senate unanimously passed the new version of the law.

HOW IS REVENGE PORN PROSECUTED?

You cannot take revenge on your ex or anyone else by posting photos or videos of that person online. It is now a felony in the state of Arizona to share intentionally a sexual photo or video of a person without that person’s consent and with the intention of harming, harassing, or intimidating that person. Posting revenge porn can also be prosecuted as a domestic violence offense. And obviously, if the video or images that are uploaded include depictions of minors, this can lead to much more serious legal action for child pornography.

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If someone nevertheless chooses to post sexual images to harm someone else, he or she could be looking at prison and the loss of his or her civil rights including the right to own a firearm. The offender could also be sued by the victim and end up losing a substantial amount if the victim’s lawsuit prevails. “For folks, mostly guys, who are using technology to hurt ex-girlfriends, we really need to put a stop to it,” Representative J.D. Mesnard of Chandler, who sponsored the bill, told the Arizona Republic. “It’s not OK to use things done in a trusting relationship to hurt them. This can damage them personally and professionally. It follows them the rest of their lives.”

The original 2014 “revenge porn” law in Arizona was challenged by librarians, publishers, photographers, and bookstore owners who sued and alleged that the legislation was so vaguely drafted that it could have a chilling effect on First Amendment-protected speech. They argued that the legislation could land them in prison for merely displaying, publishing, or selling some nude images. There was “no exception for things like artistic or even public interest, like a photo in a newspaper,” said Dan Pochoda, Senior Counsel for the American Civil Liberties Union of Arizona.

WHAT ARE THE SPECIFICS OF THE NEW LAW?

Specifically, the new “revenge porn” law in Arizona makes it illegal for a person to disclose intentionally an image of another person who is identifiable from the image itself or from information displayed in connection with the image if the person in the image is depicted in a state of nudity or is engaged in specific sexual activities, if the depicted person has a reasonable expectation of privacy, and if the image is disclosed with the intent to harm, harass, intimidate, threaten, or coerce the depicted person. Sending an image electronically to another person does not remove the sender’s reasonable expectation of privacy for that image.

Posting “revenge porn” online in Arizona is now a Class Four felony punishable upon conviction by a minimum of eighteen months in prison and up to $150,000 in fines. Defendants will need to be represented by an experienced Arizona criminal defense lawyer. Revenge porn laws have been passed now by twenty-seven of the fifty states, but revenge porn victims in other states have successfully sought justice through civil lawsuits alleging invasion of privacy, public disclosure of private facts, and intentional infliction of emotional distress.

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For example, in 2014, a half-million-dollar settlement was awarded to a Texas woman who brought a lawsuit against her ex-boyfriend for posting video and photos of her on the Internet, but the state did not have a specific revenge porn law at the time of the lawsuit. Forty states have anti-cyber-harassment statutes that may also allow those states to prosecute those who upload revenge porn. A victim who took his or her own photographs holds the copyright and can have images removed from a website by filing Digital Millennium Copyright Act takedown notices with service providers.

DO REVENGE PORN LAWS HAVE UNINTENDED CONSEQUENCES?

However, internet service providers and website owners are protected from liability for revenge porn by the Communications Decency Act of 1996. Some free speech activists oppose revenge porn legislation on First Amendment grounds. They say that historically, laws that restrict the freedom of expression in the United States are always eventually and inevitably overturned. Sarah Jeong, co-Editor-in-Chief of the Harvard Journal of Law & Gender, asserts that new criminal laws meant to combat revenge porn are also likely to have unintended consequences.

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One interesting consequence is that couples drafting prenuptial agreements prior to marriage are now including social media clauses in those agreements. Prenuptial agreements may state that a couple agrees not to share photos or posts that are likely to harm a spouse’s professional reputation. Certainly, it will be interesting in the future to see how the legal battle between the right to free speech and the right to privacy plays out in revenge porn cases.

Anyone charged with violating Arizona’s new revenge porn law will need to retain the services of an experienced Arizona criminal defense lawyer. While free speech probably will not work as a defense against the Arizona law, if someone posted items online unintentionally, or if someone charged with revenge porn is not the person who actually uploaded the images, a good defense attorney will probably be able to help.