With comedian John Oliver’s poignant rant about revenge porn — the nonconsensual distribution of sexually explicit images without the subject’s consent — this problem is finally getting the exposure it deserves. Now we can add another unlikely ally to the cause, former pro wrestler Hulk Hogan. The reality TV star is suing Gawker for distributing a lurid sex tape, in which he is the subject, without his permission. His unflinching quest for justice is a prime example of the challenges that victims encounter, the inadequacy of the legal system in providing meaningful relief and the overwhelming need for congressional action.
{mosads}Here are the bizarre details of the case. In 2012, the website Gawker, self-described as a one-stop guide to media and pop culture, posted a video of Hulk Hogan having sex with Heather Clem, the wife of Hogan’s former friend, Bubba the Love Sponge (born Todd Clem). Gawker claimed the video to be “newsworthy” and posted an edited copy of it along with a detailed accompanying narrative of what transpires in the video. Hogan claimed that the video was distributed without his consent and asked Gawker to remove it. Gawker refused, even when a circuit court judge issued an order compelling the website to remove the video. (The video has since been removed, but the post remains today.) Now Hogan has taken Gawker to court, eyeing a hefty $100 million in damages.
There are two issues in this case. The first is whether someone made the video without Hogan’s consent. Hogan alleges he did not know he was being taped, while his friend disputes that (the video was shot on home surveillance equipment rather than a traditional camcorder). But the second, and more pertinent issue, is the fact that Hogan did not give his consent for the distribution of sexually explicit images of his body. (Gawker’s defense is that it has a First Amendment right to publish “newsworthy” information about public figures. Hogan may be a minor TV celebrity, but that does not justify such a gross violation of his privacy. The public interest in seeing a celebrity’s sex life is marginal, and he is not an elected public figure.)
This same issue is at the heart of the debate about revenge porn, of which victims are overwhelmingly female. In some instances, these images may have been hacked or stolen. In others, a victim may have shared these images with a former partner who then violated that trust and disseminated them online. Regardless of the origins, individuals should not have sexually explicit images of themselves shared without their consent.
Revenge porn has a plethora of damaging effects, such as shattered reputations, loss of employment, emotional damage and all-too-real threats of violence from strangers. For example, the U.S. Department of Transportation fired a woman after a coworker sent a nude photograph of her to several of her colleagues. This is often the goal: Harassers know that by posting nude images of their victims next to their personal information, they will make it difficult for victims to find employment and put them at risk for assault.
State legislation to address this problem has been inadequate. To date, only 23 states have some sort of law specifically outlawing nonconsensual pornography, and in states without these laws, victims have little to no recourse. Furthermore, while some states allow victims of this crime to seek civil remedies for intentional infliction of emotional distress or invasion of privacy, few people have the resources of Hogan to pursue this course of action. Privacy groups like the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) have opposed state legislation, fearing that it could lead to infringement on free speech, even though narrowly crafted legislation can protect individuals without treading on the First Amendment. And while Google has announced plans to remove nude or explicit images shared without the subject’s consent from its search results, private-sector action is not enough.
Congress should pass federal legislation criminalizing revenge porn to bring relief to victims. If a federal law existed, the government would pursue criminal prosecutions, ensuring that even victims unable to afford an expensive lawsuit could receive protection. In the case of Hogan, a federal law banning the nonconsensual distribution of sexually explicit images would have extricated Hogan from a legal grey area, protecting his privacy and giving Gawker a legal incentive to remove the video in a timely manner. And most importantly, federal law would make it easier for the everyday victims of this type of online abuse to seek damages, take down these images and take back their privacy.
Congress should move expediently to take up legislation banning revenge porn — such as Rep. Jackie Speier’s (D-Calif.) much-anticipated Intimate Privacy Protection Act — because everyone deserves to choose when and how their nude images can be seen.
Castro is the vice president for the Information Technology and Innovation Foundation (ITIF). McQuinn is a research assistant at ITIF.