There have been many reports of people’s intimate and explicit videos being shared online without their knowledge or consent. The videos and photographs have been of both celebrities and everyday people, and there are even websites dedicated to hosting these videos and images. Because in most cases these videos and photographs were originally taken with the consent of all parties, and only later released by one party after a relationship has gone sour, they are referred to as revenge porn.
New York State does not have a law that specifically deals with revenge porn. New York has laws that prohibit the secret filming of a person without their consent, either naked or engaged in sexual contact. Additional laws prohibit the dissemination of such videos or photographs knowing they were illegally obtained. There was a change in 2014 that expanded the law to include situations where a person was engaged in sexual conduct but his or her sexual parts were not shown, as long as another person’s sexual parts were shown in the same image. The changes, however, did not make it illegal to post images or video that were originally created with the consent of all involved.
There are numerous laws that can apply to the distribution of explicit videos and photographs, but the laws mainly deal with nonconsensual recording or the recording of minors, leaving no real way of prosecuting people accused of distributing revenge porn. This does not mean that a person is free to make and distribute revenge porn without consequences. If a person uses the videos and photographs to blackmail or extort a person featured in the video, and receives either money or another benefit, they can be charged criminally.
In states where there are no criminal laws prohibiting the distribution of revenge porn, a victim of a revenge porn posting could file a civil suit against the person providing the videos for posting and the person or business hosting the website that displays them. In a civil suit, the victim could receive monetary compensation, and the defendant might be ordered to take down the images. Another somewhat unorthodox approach is to force the videos to be removed from the websites using copyright laws. This approach would require the victim of the posting to register the images before proceeding, which many may not want to do.
It has been suggested that the enactment of revenge porn laws in New York would run afoul of First Amendment protections for the person who posts the videos or photographs. This is because such postings could be considered speech, and prior restraints on speech are generally disfavored. Nevertheless, there is a push for stronger criminal laws that would look at consent at both the time of filming or taking of the photographs, and the time the videos and photographs are distributed. Only time will tell how severe these laws will be, and how effective they will be.
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