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ABSTRACT: Nonconsensual pornography, also known as "revenge porn," is the distribution of sexually graphic or intimate images ofindividuals without theirconsent. As scholars have argued, it is, and should be treated as, a crime. But even with a national law criminalizing nonconsensual pornography, attorneys have to get creative to provide necessary civil remedies to victims in need. This Essay argues that practitioners should add the tort of breach of confidentiality to their arsenal of tools to fight nonconsensual pornography. Presenting evidence from, among other sources, a series of first-person interviews with victims of cyberharassment, this Essay shows that nonconsensual pornography does violence to essential social norms of trust at the core of social interaction. As such, the tort of breach of confidentiality, which focuses on remedying breaches of trust, should be deployed to help victims of"revenge porn" obtain justice.
I. INTRODUCTION
Nonconsensual pornography, also known as "revenge porn,"1 is the distribution of sexually graphic or intimate images of individuals without their consent.2 It can have devastating effects: Victims experience severe anxiety and depression and they are often placed in physical danger. They lose their jobs and have difficulty finding new ones. Many have to recede from online life, move far away, and even change their names to escape revenge porn's long shadow.3 In response, 35 states and the District of Columbia have criminalized the practice,4 with legislation introduced in several others.5 Only nine states offer victims civil remedies.6 Google, Twitter, and even Reddit and PornHub are just a few of the internet platforms that have banned it,7 and many, like Microsoft, provide users with forms and procedures to initiate the take-down or de-link process.8
This landscape, though markedly improved from just five years ago, still inadequately protects victims, most of whom are women. After substantial media attention10 and the tireless efforts of the Cyber Civil Rights Initiative,11 Congresswoman Jackie Speier finally introduced her proposal for a federal criminal nonconsensual pornography law on July 14, 2016.12 The legislation still has far to go before it becomes law. Even with such a law, civil remedies are hard to come by. Section 230 of the Communications Decency Act still immunizes almost all websites that host this form of cyberexploitation.13 High walls of anonymity make it difficult to...