Revenge Porn and the Uphill Battle to Sue Site Operators

Last week, a group of women filed a lawsuit against the revenge porn site Texxxan.com as well as the hosting company Go Daddy!  Defendant Texxxan.com invites users to post nude photographs of individuals who never consented to their posting.  Revenge porn sites — whether Private Voyeur, Is Anyone Down?, HunterMoore.tv (and the former IsAnyoneUp?), or Texxxan.com — mostly host women’s naked pictures next to their contact information and links to their social media profiles. Much like other forms of cyber stalking, revenge porn ruins individuals’ reputations as the pictures saturate Google searches of their names, incites third parties to email and stalk individuals, causes terrible embarrassment and shame, and risks physical stalking and harm.  In the recently filed suit, victims of revenge porn have brought invasion of privacy and civil conspiracy claims against the site operator and the web hosting company, not the posters themselves who may be difficult to find. More difficult though will be getting the case past a Rule 12(b)(6) motion to dismiss.

In this post, I’m going to explain why this lawsuit is facing an uphill battle under Section 230 of the Communications Decency Act and why extending Section 230’s safe harbor to sites designed to encourage illicit activity seems out of whack with the broader purpose of CDA.  In my next post, I will talk about cases that seemingly open the door for plaintiffs to bring their suit and why those cases provide a poor foundation for their arguments.

Does Section 230 give revenge porn operators free reign to ruin people’s lives (as revenge porn site operator Hunter Moore proudly describes what he does)?  Sad to say, they do.  Courts have read Section 230 to provide site operators a sweeping immunity from liability for defamation, privacy invasion, intentional infliction of emotional distress, civil rights, and other claims related to user-generated content.  Under the prevailing view, site operators are not liable for the content that users post even if it is defamatory, privacy invading, and harassing.  They have no obligation to patrol their sites or respond to cyber harassment victims’ complaints, even though they would have to be responsive to complaints concerning copyright violations.  This seems hard to square with what the legislation was all about.

Section 230 is part of the Communications Decency Act.  Unless Congress had truly fallen down Alice in Wonderland’s rabbit hole, one would expect “communications decency” legislation to promote, rather than subvert, online decency.  Section 230’s title expressly provides “protection for private blocking and screening of offensive material.”  Revenge porn sites seemingly fall outside its protection as they encourage users to post “offensive” material—whether it involves privacy-invasive nude photographs, sexual threats, or vicious lies.  Although titles added by non-legislative compilers are entitled to little weight, Section 230’s title was enacted by Congress and signed by the President.  Courts should give it deference, especially when it comes to cyber cesspools.

Blanket immunity for revenge porn operators is incompatible with congressional purpose.  Section 230 celebrates the Internet as a “forum for a true diversity of political discourse, unique opportunities for political development, and myriad avenues for intellectual activity” for the “benefit of all Americans.”  But revenge porn sites and other cyber cesspools threaten the universality of the Internet’s benefits by encouraging cyber harassment that silences women and minorities, narrows the range of political discourse, and stifles intellectual activity.

It’s true that in Section 230(b)(2), Congress declared it federal policy to preserve “vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal and State regulation.”  But Congress was surely referring to the marketplace of Internet services, not the figurative marketplace of ideas.  Legislators did not want federal agencies or states to regulate Internet access fees.  Just three paragraphs later, Congress made clear that it was anything but anti-regulatory in articulating its goal “to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.”

Treating revenge porn operators and Good Samaritans alike devalues the work of the latter and may result in less of the self-monitoring that Section 230 sought to promote.  It eliminates incentives for better behavior by those in the best position to minimize harm.  Because responding to objectionable material is costly, both in direct expenses and in lost revenue from filtered users, site operators cannot be expected to bear these costs voluntarily.  Revenge porn sites would never do so voluntarily.  Their entire business model is based on attracting targeted abuse of individuals because it attracts traffic and advertising revenue.  Blanket immunity ensures that revenge porn victims have no leverage to press site operators to take down injurious material or retain IP addresses that might enable them to identify wrongdoers.

But broad-sweeping immunity for site operators is the prevailing view.  There are a few cases suggesting otherwise, but my next post addresses why they stand on less than firm ground.

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4 Responses

  1. PrometheeFeu says:

    “Blanket immunity ensures that revenge porn victims have no leverage to press site operators to take down injurious material or retain IP addresses that might enable them to identify wrongdoers.”

    Perhaps not. But unlike in the case of copyright infringement, the victim has a pretty good chance of identifying the user. Perhaps I am atypical, but the sexual explicit depictions of myself have a fairly narrow distribution. Should such a picture end up being made public I would have no trouble finding out who posted it and I could sue them directly. The site operator is clearly “icky”, but I don’t think there is a powerful necessity to go after the site operator.

    But I am no expert. Are there significant obstacles to bringing lawsuits against the users themselves?

  2. Danielle Citron says:

    There is, at least given all the discussions I have had with victims. Victims have had to change their names because site operators refuse to take down the pictures and thus Google searches of their names feature these pictures prominently. Some site operators say yes I will take them down, but you have to pay me first. Many victims cannot afford to pay the site operators (especially if the pictures appear on many revenge porn sites, which has happened to a few victims I have interviewed). So yes, victims could sue their vengeful exes but the pictures remain online, continuing to ruin reputations and raise the risk of stalking and physical attack.

  3. Alex says:

    Girls just have to start suing website operators and hosting companies. That’s the only way to stop revenge porn.

  4. prometheefeu says:

    @Danielle Citron

    Couldn’t the original posters be made to pay for the cleanup in a damages suit?