One of the most frustrating parts of being a victim of revenge porn is how hard it is to get justice.
Although sixteen states have laws protecting victims from revenge porn —loosely defined as private photos posted online by an angry ex—Massachusetts is not among them. Victims need to navigate a murky collection of laws as they try to get their most private moments removed from the Internet.
The victims who have the best chance of succeeding are those who took their own photos because they automatically own the copyrights to their own images.
Even if someone who distributes revenge porn photos is punished by criminal law, the photos might not necessarily get removed from the Internet because of the Federal Communications Decency Act. Section 230 of the act says a website or Internet service provider cannot be held liable for content posted by someone else.
Boston.com talked to Mitchell J. Matorin, a Wellesley-based lawyer, and Lissa McKinney, an Acton-based attorney, about some of the ways to try to get these photos removed. Matorin said that, under the act, victims trying to get photos removed can turn to federal criminal law, intellectual property law, and, in some cases, state law.
Alleging copyright infringement is a victim’s best bet, he said.
If a victim’s photo is posted without her consent, she still owns the copyright as long as she took it herself. If her partner took the photo—with or without consent—he owns the copyright unless he agrees to transfer it.
A victim who owns a copyright must file the image with the U.S. copyright office, which will then submit a copyright number to indicate that it has been registered in a federal database. Once the image has been granted a copyright number, she can sue for infringement.
To apply federal criminal law to one of these cases, Matorin said there would have to be a charge such as extortion, where the website was demanding money to remove the photos. In such a case, the victim would need to prove extortion or stalking by the person who posted the photos. During a case of this type, the court might issue an order to get the photos removed.
The last exemption to the act is state law, provided it doesn’t infringe on the immunity granted by the act, Matorin said. In Massachusetts, victims might be able to take action through the Massachusetts criminal harassment statute to obtain a harassment restraining order against the person who posted the photos, McKinney said. The restraining order might cause the person who posted the image to take it down, but it is not a guarantee.
Still, the best solution, Matorin said, would be to amend the act, but that would be difficult because of concerns about limiting free speech.
“I don’t mean to make light of the efforts to criminalize behavior,’’ Matorin said. “It’s the Internet and it’s the Wild West, and sometimes people do things without thinking. For now, criminalizing behavior sends a message that might cause them to think twice.’’