Will Broadly-Written 'Revenge Porn' Laws Encourage Shady Law Firms To Engage In 'Revenge Porn' Trolling?

Predictions

from the a-brand-new-set-of-exploits dept

“Revenge porn” laws are universally badly and broadly written, prone to all sorts of unintended consequences that will punish First Amendment-protected speech with increasingly harsh sentences. Arizona’s new “revenge porn” law equates the offense with domestic violence, filing under Chapter 14 of state law (“Sexual Offenses”).

This law has the potential to create a new, ultra-nefarious level of “revenge porn trolling” by entities with the same moral turpitude as Prenda and Malibu Media, both of which have actively explored the outer limits of copyright law in their extortionate efforts. Arizona’s new “revenge porn” law gives these sorts of entities a new form of leverage to use against unwary infringers.

The law contains wording that would implicate anyone who “intentionally discloses, displays, distributes, publishes, advertises or offers” any form of media depicting sexual activity or nudity “if the person knows or should have known that the depicted person has not consented to the disclosure.”

By definition, copyright infringement is “disclosing without consent.” You can’t infringe if you have permission.

True, there is an exception that excludes “images involving voluntary exposure in a public or commercial setting.” This would seem to exclude professional pornography, but that would also seem to be outweighed by the “consent” referenced in the law’s opening paragraph.

This potentially creates a loophole for porn producers (or rather, their legal representation) to pursue the non-consensual republication of their content.

What would be scarier for the non-aware infringer to receive? A demand letter referencing potential infringement damages or a demand letter referencing potential felony charges for sexual offenses?

It wouldn’t take much to set up a honeypot. Just a few amateurish-looking shots and maybe a quick and dirty site with a revenge porn-ish look. With even less effort, photos and video could be scattered across the web containing faux contact info — anything to make them look like the sort of thing the bill targets. And if the info comes out that a law firm/porn producer was behind the content, they can always fall back on copyright.

Even without a honeypot, there’s still the question of consent. If Arizonan X post infringing pics and video to his tumblr, he is definitely circumventing the depicted person(s) “consent.” The law only specifies that the posting person “knows or should have known” that the depicted person did not consent to this “disclosure.” Consent given to a porn producer is not consent given to the public for distribution.

Granted, criminal prosecution won’t result in monetary reward for trolls, but trolling endgame has never been the courtroom. The judicial system is the last resort. The real money is in demand letters, and Arizona’s new bill will give them plenty of legal threats to use.

[Side note: this doesn’t even address what the law does — in fact, what all these laws do — to the tangled legalities of amateur porn. If consenting adults post consensual images and video of their sexual activities, what happens when one of the parties revokes consent after the fact? Does this make the posted material instantly illegal? There’s no wording in Arizona’s law that addresses this form of consent (that language was dropped, along with wording about newsworthy postings). Professional porn would have explicit language dealing with consent, but amateur efforts would obviously be devoid of contractual stipulations.

No doubt advocates of this law would consider the revocation of consent by one party to be sufficient enough for prosecution, but this should make anyone in the affected states wary about engaging in recorded sexual activities — even more so than “revenge porn” itself does.]

Filed Under: arizona, honey pots, revenge porn, trolling