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Wednesday, December 3, 2014

The First Conviction Under California's Revenge Porn Law

The Los Angeles City Attorney announced that it has secured a conviction against Noe Iniguez, who posted nude photographs of his ex-girlfriend online. The Huffington Post and Mashable have reports on the story as well.

California's law against revenge porn was enacted in October 2013 and is currently codified at Penal Code 647(j)(4)(A). Originally, the law prohibited certain instances of distributing photos that one had taken of another person. It therefore did not apply to photographs that a victim would take of himself or herself. An amendment that will expand the law to apply to selfies was approved by the governor in September, 2014, and it is my understanding that this change will take effect in 2015.

Here is the current version of the law:
Any person who photographs or records by any means the image of the intimate body part or parts of another identifiable person, under circumstances where the parties agree or understand that the image shall remain private, and the person subsequently distributes the image taken, with the intent to cause serious emotional distress and the depicted person suffers serious emotional distress.
The City Attorney's announcement describes Iniguez's conduct, which seems to be a pretty clear violation of the law:

In December 2013, Iniguez, using an alias, allegedly began posting derogatory comments about his ex-girlfriend on her employer’s Facebook page. In March, 2014 Iniguez allegedly posted a topless photograph of the victim on her employer’s Facebook page which was accompanied by a message that called the victim a “drunk” and a “slut” and encouraged her firing from the company. The victim had previously secured a restraining order against Iniguez in November 2011 after receiving several harassing text messages following the breakup of their four year relationship.
I have noted before that revenge porn laws tend to draw criticism from commentators who argue that these laws violate the First Amendment. Indeed, Mike Masnick at Techdirt raises this point against the California law (though he makes sure to note that Iniguez does indeed sound "horrible").

But I think that California's law does not raise the same First Amendment problems as, say, Arizona's recently-halted attempt to criminalize revenge porn. The California law specifies that the law is limited to images that are shared in private circumstances, and therefore requires prosecutors to establish that the circumstances in which the image was initially taken or shared were private. Moreover, the law requires the prosecution to prove that the defendant specifically intended to "cause serious emotional distress," and that the victim suffered such distress. All of these parts of the law narrow the scope of the revenge porn prohibition and thereby limit the law's impact on speech.

While this is the first conviction under California's revenge porn law, several other cases are about to get underway -- as the California Attorney General has filed charges against several websites that specialize in sharing revenge porn. I blogged about one of those cases back in December when the case was at the arrest stage.

Those who are interested in revenge porn laws should pay attention to California. The upcoming cases should illustrate whether laws against revenge porn can be a reliable tool for punishing deplorable online behavior. And if any of these cases are appealed, I expect that the California Courts of Appeal will need to address the First Amendment implications of laws against revenge porn.

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