Maryland’s Revenge Porn Law May Face Legal Hurdles

October 17, 2014

We’ve all seen the shock-value headlines: “Oh My God, Naked Photos of Kate Upton!”[i] “Jennifer Lawrence Speaks For the First Time About Her Stolen Nude Photos”[ii] There is a movie called “Sex Tape,” in which a couple “discover that their most private video is no longer private.”[iii] On a smaller scale, a scorned lover, spouse, girlfriend, or boyfriend may get revenge by sharing intimate images with others by populating them to social media or uploading them to websites where people share such private images. When two people take consensual, intimate photographs, the subject does not expect that the photos will be posted on the Internet for all to see. However, if the relationship sours, the privacy of an unsuspecting victim may be compromised as the photos are posted on Twitter, Facebook, and websites like myex.com, in an attempt to get revenge.   

All too frequently, private photos are leaked on the Internet with malicious intent. This conduct, while offensive, was not defamatory, illegal, or otherwise prohibited. The victim had no recourse. On October 1, 2014, Maryland joined thirteen other states criminalizing publication of these intimate images without permission of the person/people depicted – so-called “revenge porn.” Maryland’s “revenge porn” law is broad and states that:  

A person may not intentionally cause serious emotional distress to another by intentionally placing on the Internet a photograph, film, videotape, recording, or any other reproduction of the image of the other person that reveals the identity of the other person with his or her intimate parts exposed or while engaged in an act of sexual contact:

(1) knowing that the other person did not consent to the placement of the image on the Internet; and

(2) under circumstances in which the other person had a reasonable expectation that the image would be kept private.[iv]

Images created in public or commercial settings are excluded from this law.[v] Publication of prohibited images with the intent to cause serious emotional distress is a misdemeanor subject to a fine of up to $5,000 or incarceration not to exceed 2 years.[vi]

            While a powerful tool that preserves people’s privacy and decency, Maryland’s revenge porn law has several potential hurdles. In his review of the bill, Attorney General Gansler noted a potential First Amendment challenge to its restriction of free speech; however, he concluded that such a challenge was not likely to succeed.[vii] The First Amendment restrictions, he determined, are not impermissibly broad because the law requires that the publication be motivated by an intent to inflict severe harm, and because the restrictions are on purely private matters, not matters of public concern.[viii] Attorney General Gansler notes that, “there is a risk that as applied to virtual representations such as drawings or animation, a court could find the prohibition to be an impermissible restraint on speech.”[ix]

            Enforcement is also problematic. Once leaked in an electronic format, an image can quickly be disseminated across the Internet. After several, or thousands, of forwards, reposts, and shares, it may be impossible, and resource intensive, to identify the original source of the leak.

            Finally, the law does not enable the victim to remove the material from the Internet. Again, the Internet allows infinite re-blogging, re-posting, and re-sharing of an image. Once it has been published, it is impossible to retract. While the original publisher may be punished, the harm to the victim will continue to accrue.

            Maryland’s revenge porn law is not immune from legal challenges and is not without its practical hurdles. However, it provides law enforcement with powerful tools to control the flow of personal, confidential, and intimate images, and provides victims with tools to preserve their dignity.