Should Tumblr Be Forced To Reveal 500 People Who Reblogged A Sex Tape?

from the bad-cases-make-bad-law dept

What were we just saying about how it’s important to defend Section 230 of the CDA even when it’s hard? Well, here’s a hard case in New York City where the situation is very unfortunate. It appears that a woman discovered that an old sex tape of hers had surfaced online from 10 years earlier when she was 17. Someone had posted it to Tumblr, where over 1,000 people apparently viewed it — and somewhere around 500 “reblogged” it or commented on it in some manner. This is, undoubtedly, traumatic for the woman. She appears to believe that “an angry ex” posted it to Tumblr originally, which would make this a classic “revenge porn” situation.

But… rather than go after that ex, her lawyer is going after everyone who reblogged it on Tumblr and somehow got a judge to agree to force Tumblr to cough up identifying information on all of them. So let’s be clear: this is clearly a horrifying story and an awful thing for the woman to live through. And, on top of that, the people who not only viewed, but further shared the video are awful human beings who should feel bad about their choices in life.

But… there are all sorts of legal questions here that should raise concerns. First up: Section 230. That should have kept Tumblr from being liable if it fails to hand over this info, as it’s not supposed to be held liable for the actions of its users. And that’s even — as noted by Scott Greenfield — after Tumblr failed to show up in court and the judge gave the plaintiff a default ruling. Second issue: protecting anonymity online. As we’ve detailed many times before, and as the Supreme Court has stated, the right to speak anonymously is also protected by the First Amendment. There are standards for revealing identifying information on anonymous speech, but it requires those in court clear a pretty high bar in proving why it’s necessary to strip that right of anonymity. It does not appear that any such high bar was met in this case. Third issue: on Tumblr, “reblogging” something is basically a click of a button and is often the functional equivalent of a “retweet” for those more familiar with Twitter. That is, it does not signal endorsement — but really just a way of marking something that you saw.

So, again, this is one of those cases where it certainly feels very difficult to defend the other side here. I have nothing good to say about the people who watched or reblogged the video. But getting Tumblr to reveal their identities so that she can proceed to sue them is a bad idea fraught with all sorts of problems.

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Comments on “Should Tumblr Be Forced To Reveal 500 People Who Reblogged A Sex Tape?”

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41 Comments
Ninja (profile) says:

Should any platform be forced by the government to reveal anybody retweeting, reblogging, sharing etc stories about what Ed Snowden revealed about unconstitutional activity within the government?

Should whatever platform be forced by the current government to reveal anybody stating their opinions about the Russian affairs in the election?

Should we deliver yet another stab at our convalescent freedoms?

DannyB (profile) says:

Re: Re:

On the subject of stating opinions, the government should not be able to forbid those. Instead the Ministry Of Truth could publish a list of opinions that people should avoid.

Similarly, the judge in this case could simply order Tumblr to provide a public page of links to all possible copies of the reblogged offending revenge pr0n, so that people know what links to avoid.

Anonymous Coward says:

Re: Re:

Does it show or say anywhere in the Video that the girl is 17? How the F are you suppose to know it’s a 17 year old and not a 18 or 19 or 20 year old?

By the way, Who Originally recorded it, the Boyfriend? So HE’s the one creating Child porn!!! He would in fact know how old she was. If he’s dumb enough to release the video to the public, that’s on him and him alone and he should be busted for it.

That is if it wasn’t recorded in a state where the legal limit is 16 and not 18.

Anonymous Coward says:

“the people who not only viewed, but further shared the video are awful human beings who should feel bad about their choices in life”

Why is that? Did the Tumblr post include all of the details such as the girl’s age and the circumstances of the video and the posting thereof? Or was this just more porn on the internet? This “article” is heavy on accusation and light on information.

Wendy Cockcroft (user link) says:

Re: Re: Re: Re:

What I don’t understand is why people make sex tapes in the first place. However much you and Poo Poo are in wuv, when it all goes south, the video goes online.

I always advise all my friends; your privacy is as private as your noisiest friend. All it takes is for one person to share it with someone outside of the group for your intimate secret to go viral. Boyfriend (or girlfriend) absolutely WILL share that pic of your privates with his or her friends for a laugh; assume this every time to avoid tears down the line. Therefore NEVER share anything in your set-to-friends-only area of your social media account that you don’t want the entire world to know, as sooner or later that is what will happen.

So… what makes any given individual think they’re the exception to that rule? I really, really don’t get it.

Anonymous Coward says:

And, on top of that, the people who not only viewed, but further shared the video are awful human beings who should feel bad about their choices in life.

Maybe. Even accepting that the reblog is a deliberate choice, we don’t know that all the people who clicked it did so for reprehensible reasons. Admittedly, it’s unlikely even a large fraction of the 500 did so for virtuous purposes, but at least entertain the possibility that a few of them tagged it for a reason other than puerile gratification. A few that come quickly to mind:

  • A reporter who flags it for use in an upcoming story on how the Internet is destroying society, ruining reputations, etc.
  • A prosecutor who flags it to review for whether a crime might be depicted. (Since others have pointed out the victim was 17 at the time, a prosecutor might well hope for an easy win pursuing the case as a child pornography incident.)
  • A civil attorney who flags it intending to "ambulance chase" – that is, contact the victim and offer services suing the perpetrators. (OK, maybe this one should feel bad about his/her choices in life, given how most people probably feel about ambulance chasers. ;))
  • A recruiter for pornographic productions who flagged it intending to contact her to see if she would be willing to do paid work in the industry. (Yes, we should probably condemn this one too. Even if this is a more upstanding job than ambulance chaser, it’s probably not a good way to find new hires.)
Christenson says:

Re: Re:imagining innocent clicks

I’ve been using a website lately with my mousepad, and…the silly thing ACCIDENTALLY hit a button that blocked someone, took quite awhile to figure out how to undo that!

Maybe some of these were trying to figure out how to report TOS violations, or have a wise friend take a look. Hey, Mike Masnick, is the post above actually LEGAL???

And all this user reprehensibility ASSUMES the users knew how horrible this video was AT THE POINT they re-blogged, not to mention the horrendous circumstances.

Anonymous Coward says:

Section 230. That should have kept Tumblr from being liable if it fails to hand over this info, as it’s not supposed to be held liable for the actions of its users.

I guess this just goes to show how little I know about Section 230. I’d always been told (mostly by this website, to be honest) that it principally prevented those who hosted (or shared or whatever) content from being liable for said content. In essence, you cannot sue Tumblr for the content of posts made on Tumblr. Or the people who reblogged things on Tumblr cannot be held liable for the content of what they reblogged. Which is great.

This, though, suggests that Section 230 also prevents intermediaries from being required to hand over information on it’s users to the courts. That is, Tumblr is not being held responsible for the sex video, it’s being held responsible for failing to hand over records to the court. Maybe this is a thing, but I’d always been under the impression that the Tumblr/Facebook/Twitter/etc of the world were required to hand over information when ordered to by a court just like everyone else.

Particularly considering that they would qualify as a third party under the third party doctrine.

TKnarr (profile) says:

Re: Re:

It’s one of the legalistic bits. Tumblr’s being asked to turn over info in an action against Tumblr. That ought to fall under the Section 230 shield since there’s not supposed to be an action against Tumblr at all in these circumstances. By rights, if the plaintiff wanted to go after the people who reblogged the link they should’ve filed actions against those users, shown that their actions were serious enough to allow for their identification, and then asked Tumblr to turn over the info as a third party in a proceeding not directed at Tumblr. But that’s a lot more work than the plaintiff in this case wants to go to, especially given that they’re unlikely to be able to show enough to get the identities, hence the shortcuts.

Anonymous Coward says:

Third issue: on Tumblr, "reblogging" something is basically a click of a button and is often the functional equivalent of a "retweet" for those more familiar with Twitter. That is, it does not signal endorsement — but really just a way of marking something that you saw.

I kind of have to disagree on both counts there. Sure it takes just the click of a button, but reblogging or retweeting isn’t just a way of marking something that you saw.

Reblogging a post on tumblr rehosts that post on your own account with a trackback to the source. Such that even if the original source is deleted, it remains on your account and would need to be separately deleted from there. In other words it spreads the original post, and provides an additional place to find that content, in a way that merely linking to the original post does not. Everyone who reblogged it is an additional source for the video. That’s a far cry from merely being "a way of marking something that you saw" which more accurately describes liking or favoriting something.

Retweeting is somewhat similar in that it spreads a tweet so that others are more likely to see it, but I’m uncertain if retweets persist once the original tweet is deleted.

So yeah, reblogging something isn’t simply a way of marking that you saw something. It is essentially a way to say ‘I want you to see this’. Though how much of an endorsement it is, is debatable. I’m sure that some of those accounts are likely bots that merely reblog porn with certain keywords associated for example.

zboot (profile) says:

Re: Re:

Except, is there an easy way to actually “like” or “favorite” something on tumblr?

It seems like “reblogging” is an easy way to do this and given the ease of doing so, why would you “like” or “favorite” something that could disappear when you could easily preserve it so what you like doesn’t go away when the host dies?

I bookmark links to product pages for stuff I find interesting. And about once a year, go through culling links which are now dead. Then I found a site that essentially makes copies of product images and summarizes what it does – so I bookmark that site, rather than the underlying product page because those links are less likely to go away.

Preserving information on it’s own is a thing that many people value and does not necessarily imply some additional level of support or promotion.

Agammamon says:

Simple Justice covered this one – Tumbler wouldn’t be in a position to be forced to do anything if they had bothered to respond to the service and show up to court. They didn’t, the judge entered a default order in favor of the plaintiff, and not Tumblrs running around trying to play catch up.

http://blog.simplejustice.us/2017/06/09/the-tumblr-500/

TKnarr (profile) says:

Re: Re:

And even if it hadn’t been covered, consider something. If sites like Tumblr have to waste time and money showing up every time someone wants to hold them liable for or require them to act because of posts by their users without having first won against those users, what’s the point of having Section 230 at all? The whole idea behind Section 230 was specifically to prevent hosting providers from having to worry about plaintiffs trying to go after the easy target instead of the right target.

Maybe it’s time to start going directly to the Appeals Courts on the grounds that the judges in these cases are failing to apply the law as written when handing down these default judgments (they’re ignoring Section 230 when it applies and they should be forced to either apply it as they’re required to or face disciplinary action).

Avatar28 (profile) says:

Possibly throwing her ex and herself under the bus too?

The user claims that she made this sex tape at 17. That would make it, legally speaking, child porn. (Whether it should be or not is another discussion entirely.) That also means that a prosecutor could go after her ex and potentially her, depending how involved she was in the recording of it, for production and/or possession of child porn. This could potentially go from bad to worse for her.

That Anonymous Coward (profile) says:

“the non-consensual sex video of a woman”

Was she raped? Was she unaware of the filming? Was she just angry about the video getting out?

If this was a case about going after those that were harassing her after it was out there, no one would blink.

Did she take any steps to try and get the content removed from Tumblr? Unlike the skeezy revenge porn sites that hide, Tumblr is really easy to find & receptive to removing improper things they are made aware of.

Going after 500 people who basically “retweeted” the content, not knowing anything about it, seems like a nice way to try and cash in. There is a special hell for those that sought her out to harass her & the ex who allegedly leaked it… but randoms on the internet who just pressed a button seems to far. (Now mind you if it was clearly labeled as revenge porn and they spread it… game on.)

TKnarr (profile) says:

Re: Re:

I suspect the tape’s one of those where the sex was consensual and she knew the tape was being made but the understanding she had at the time was that it wasn’t going any further than the participants. Years down the road, the other participant got mad at her for some reason or another and decided to post their copy of the tape to get back at her and/or cause her trouble.

As unfair as it seems that someone should have to deal with this just because of a jerk they stopped dating, it’s still an example of the old Sicilian proverb “Two can keep a secret, if one of them is dead.”.

Anonymous Coward says:

Re: Re:

The bigger problem was mentioned earlier; if she was 17 at the time the video was made, it is legally child porn. While I doubt you could convict the 500 people who shared it(unless it was labelled saying she was 17), the person who posted it undoubtedly guilty of distributing child porn(he knew how old he was when they made the video).

Without knowing the full details of what was in the post(was it labelled as her being 17? was it labeled as revenge porn?), it’s hard to say how much liability those who shared it have. I imagine we’ll find out more as the case progresses. If it WAS labelled as revenge porn, or it DID state she was 17, then absolutely those people should be prosecuted.

That Anonymous Coward (profile) says:

Re: Re: Re:

I would feel better if the case was against the ex who allegedly uploaded it & sought to have tumblr remove the video.
Asking Tumblr to unmask 500ish people when those that harassed her were on FB seems convoluted since FB makes them use their names.
If it was labeled as look at this 17 yr old ***** & mock her, game on. But if it was just a video lacking that context…

CP is a live wire topic, and the legal system tends to go take no prisoners (o_O) in their methods. We don’t have all the data we need to make good armchair quarterback decisions, but I do have worries that someone who just reblogged, it without any knowledge of its context, is going to have their life ruined to try and make her feel whole in some way… it’s not going to undo the harm. Its harsh but true, ruining 500 peoples lives isn’t a great plan.

My_Name_Here says:

My (delayed) opinion

Here’s my thoughts, delayed as they may be.

Child porn is bad, although in fairness many people would have a very hard time tell a person who is 17 days and 364 days from one who is 18 years and 1 day. Legally though, the fence is there and it’s solid line with very few ways around it. That it was on Tumblr is bad, that it was distributed and viewed by hundreds of people is nasty, and the implications that some or all of these people reblogged it to hundreds or thousands more people is a huge problem. Each step along the way, they (and Tumblr) have been distributing certifiable child porn.

Also, I think that this case is a perfect example of why section 230 is a crock of shit. The intention is good, but the way it would play out would be very bad for both the victim and the public morals. What it suggests is that, provided you use an “anonymous” service (which is rarely truly and completely anonymous) you can break the law with impunity. Moreover, the service that helps you to do that (because that’s what Tumblr does in this case, help your distribution) can just point at your “anonymous” status and take absolutely no responsibility for having the material on their service, or for having delivered it to hundreds or thousands of people.

In the real world, helping to distribute child porn is a major, major crime.

My take is this: Section 230 should not ever apply to constitutionally unprotected speech. Distribution of child porn is not protected speech. Section 230 should not apply, and it shouldn’t even be a debate issue.

Section 230 really works best when it’s protecting unpopular but legal speech. but in this case, the speech isn’t legal, and those who made it (even unknowingly) should be unmasked and dealt with by the law.

It’s just unreasonable to think otherwise.

Darkhog says:

And what did you expect?

Seriously, what did you expect from the SJW politically correct trash that is Tumblr? They’d probably cough it up willingly. Tumblr, like most SJWs and feminazis is anti-free speech and pro cesnorship. Sorry, but that’s how it is.

That’s why I’ve blocked tumblr in my host file (basically set tumblr(dot)com to 0.0.0.0) so I won’t accidentally click on that cancer.

Darkhog says:

Re: Re: Re: And what did you expect?

Yes, it’s a bad situation, but unlike SJWs, many antifeminists are capable of normal discussions and even inviting people with opposite view points to talk.

For example, Bearing on multiple occasions was inviting people he just made video rebuttal of to talk, even made less than 10s videos JUST to ask that they’ll get in touch and do a stream together, to no effect whatsoever.

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