Why Doesn’t Massachusetts Have a Revenge Porn Law?

–Damian Dovarganes/AP

On November 17, 2013, Katie Smith (not her real name) received an anonymous email that made her heart stop. The text of the message read, “Katie, you might want to check out these photos,’’ followed by a link. She clicked the link, and soon an image of her bare breasts popped up on her computer screen.

The topless photo she had taken to share with her then-boyfriend was now displayed on a popular revenge porn site, along with her full name, the area where she lived, and the university where she was studying to receive her PhD. When she Googled her name, her semi-nude photo appeared next to the faces of accomplished professors in her field of study.

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Last week, the Vermont House passed a bill that would make posting “revenge porn’’ photos, such as Smith’s, a felony punishable by up to five years in prison and a $5,000 fine. If the bill passes, Vermont will be one of 16 states with legislation criminalizing the posting of revenge porn.

But Massachusetts is not one of those states. Neither is Florida, where Smith lives.

Vermont, which is dwarfed in population by both states, is well ahead of them in terms of addressing revenge porn, loosely defined as private images typically posted online by an angry ex.

The problem is more pervasive than many realize, and new photos are posted online every day. A review by Boston.com of one of two sites where Smith’s image appeared displayed more than 100 photos of women said to be from Massachusetts.

Smith’s attorney is Wellesley-based Mitchell J. Matorin. He told Boston.com that revenge porn falls under the broader category of “involuntary porn’’ — “the involuntary posting of intimate photos without the person’s consent.’’

In a perfect world, Matorin said, if a photo were posted online, the victim could sue the person who posted it for defamation or invasion of privacy. She could also sue the hosting website.

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We don’t live in that world. Those hoping to get involuntary porn photos removed from the Internet can either pursue criminal or civil cases, neither of which are completely effective, Matorin said.

Although Massachusetts has no criminal law in place to deal with people who post involuntary porn pictures, Rep. Alan Silvia filed a bill in the Massachusetts House in January that deals with the “harmful distribution of sexually explicit visual material.’’ Although this bill was designed to prevent minors from being labeled as sex offenders, one section offers hope to victims of revenge porn.

His bill proposes a $1,000 fine and one-year jail sentence for those who post revenge porn. He told Boston.com that, while the penalties will probably change as the bill goes through the legislative process, he wanted to put some form of punishment in place.

“I wanted to get up to speed with other states, which is why I introduced this bill,’’ Silvia said. “But the main reason was because there was a very serious incident in my community in the Fall River School District where someone went online and distributed a nude photo through social media, which resulted in a suicide.’’

Because there is no criminal law in Massachusetts, victims must pursue the case through civil court. Bruce Anderson of Cyber Investigation Services, a firm that helps clients with Internet defamation, online stalking, and hacking, told Boston.com it can cost anywhere from $15,000 to $100,000 to hire a lawyer for a defamation suit.

Galen Hair, a partner at the law firm of Varadi, Hair & Checki, LLC told Boston.com that many victims can’t afford to sue. They’re also hesitant to talk about the photos in public, he said.

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“It’s really easy to blame the victim and say, ‘Just don’t take the photos,’’’ Hair said. “But these aren’t just young people. We see middle-aged women with kids and careers who are sending photos to people they met online but have never met in person. And that person might be sending photos back, too. This is the way they’re intimate. But then, when they break up, someone gets angry and posts the photos online.’’

Unfortunately, going to court doesn’t necessarily deliver results. Those who do take legal action will inevitably come up against the Federal Communications Decency Act. Matorin said Section 230 of this act essentially says a website or Internet service provider cannot be held accountable for information posted by one of its users.

The immunity was enacted when the Internet was starting to become what Matorin calls an e-commerce powerhouse, and was designed to protect websites like Amazon from being held liable for items users might post, and to protect websites with comments sections from being held responsible for users’ offensive posts.

“The problem is, federal immunity is pretty much a blanket immunity,’’ Matorin said. “Now, the involuntary porn industry has popped up and taken advantage of that.’’

Matorin said even if a victim does decide to take on the monetary and emotional costs of a lawsuit against the person who posted these photos, the photos won’t disappear. Smith said she is constantly reminded of the photo.

“I got emails and Facebook messages from people I didn’t know asking for more photos,’’ Smith said. “I had to change my last name.’’

But she was lucky in one regard: Because she took the photo herself, under the law, she owned the copyright and demanded the websites take it down by alleging infringement. But one of the sites still made the process harder by changing the IP address of the image so it kept reappearing.

Many victims also face another hurdle, Matorin said: determining whom to sue. It’s difficult to prove that a particular ex was the person who posted the photo, and nearly impossible to sue a website, he said.

So what is the best option for people who want to get their nude photos removed?

“There really isn’t one,’’ he said.

Smith, meanwhile, is still recovering.

“I’m not sure you’re ever really the same,’’ Smith said. “I still check once a day to see if the photo’s online. I’m still learning to trust.’’

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