Ever had a relationship end badly? It happens to a lot of people. Emotions like heartbreak, anger, and resentment are an inevitable consequence of most failed relationships – at least on one of the two sides. Unfortunately, in the most extreme cases, after a bad breakup, people do stupid and harmful things like posting pictures of their exes online – and sometimes those photos are nude. Until now, the only remedy for “revenge porn” has been through common law and copyright civil actions. Starting October 1, 2015, a new revenge porn law will hit the books, making revenge porn a statutory criminal offense, and creating a statutory civil action.
What is ‘revenge porn’?
The Internet has opened up a cottage industry of websites that encourage people (usually men) to “get revenge” on their exes by posting nude or otherwise racy photos. Sites like myex.com and thedirty.com, allow viewers to upload photographs and information about exes. Mix in heartbreak, tequila, and a smart phone, and you have a recipe for disaster. Once posted to the Internet, the photos are extremely difficult for victims to remove, even after the offender sobers up and tries to remove them. They can result in humiliation, damaged reputation, injury in job searches, and more.
Florida’s new revenge porn law does not use the term “revenge porn” but instead uses the phrase, “sexual cyberharassment,” which is the publication of a “sexually explicit image of a person that contains or conveys the personal identification information of the depicted person to an Internet website without the depicted person’s consent, for no legitimate purpose, with the intent of causing substantial emotional distress to the depicted person.”
What is the new revenge porn law?
The Florida Legislature created a new act specific to “sexual cyberharassment.” It created section 784.049, Florida Statutes, which goes into effect on October 1, 2015. The purpose of the act is to prohibit a person from willfully and maliciously sexually cyberharassing another person. It creates criminal penalties and civil remedies.
Purpose & definitions
The first part of the statute includes the legislative purpose and definitions.
784.049 Sexual cyberharassment
(1) The Legislature finds that:(a) A person depicted in a sexually explicit image taken with the person’s consent has a reasonable expectation that the image will remain private.(b) It is becoming a common practice for persons to publish a sexually explicit image of another to Internet websites without the depicted person’s consent, for no legitimate purpose, with the intent of causing substantial emotional distress to the depicted person.(c) When such images are published on Internet websites, they are able to be viewed indefinitely by persons worldwide and are able to be easily reproduced and shared.(d) The publication of such images on Internet websites creates a permanent record of the depicted person’s private nudity or private sexually explicit conduct.(e) The existence of such images on Internet websites causes those depicted in such images significant psychological harm.(f) Safeguarding the psychological well-being of persons depicted in such images is compelling.(2) As used in this section, the term:
(a) “Image” includes, but is not limited to, any photograph, picture, motion picture, film, video, or representation.(b) “Personal identification information” has the same meaning as provided in s. 817.568.(c) “Sexually cyberharass” means to publish a sexually explicit image of a person that contains or conveys the personal identification information of the depicted person to an Internet website without the depicted person’s consent, for no legitimate purpose, with the intent of causing substantial emotional distress to the depicted person.(d) “Sexually explicit image” means any image depicting nudity, as defined in s. 847.001, or depicting a person engaging in sexual conduct, as defined in s. 847.001.
New criminal penalties
It makes revenge porn misdemeanor, but repeat offenses constitute a third-degree felony.
(3)(a) Except as provided in paragraph (b), a person who willfully and maliciously sexually cyberharasses another person commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.(b) A person who has one prior conviction for sexual cyberharassment and who commits a second or subsequent sexual cyberharassment commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.(4)(a) A law enforcement officer may arrest, without a warrant, any person that he or she has probable cause to believe has violated this section.(b) Upon proper affidavits being made, a search warrant may be issued to further investigate violations of this section, including warrants issued to search a private dwelling.
It creates civil penalties
With civil penalties, a victim can now file a lawsuit for violation of the revenge porn statute. A victim can chose to sue for statutory damages of $5000 or actual damages.
(5) An aggrieved person may initiate a civil action against a person who violates this section to obtain all appropriate relief in order to prevent or remedy a violation of this section, including the following:(a) Injunctive relief.(b) Monetary damages to include $5,000 or actual damages incurred as a result of a violation of this section, whichever is greater.(c) Reasonable attorney fees and costs.
Exceptions
The law includes a carve-out for computer service providers and law enforcement.
(6) The criminal and civil penalties of this section do not apply to:
(a) A provider of an interactive computer service as defined in 47 U.S.C. s. 230(f), information service as defined in 47 U.S.C. s. 153, or communications service as defined in s. 202.11, that provides the transmission, storage, or caching of electronic communications or messages of others; other related telecommunications or commercial mobile radio service; or content provided by another person; or(b) A law enforcement officer, as defined in s. 943.10, or any local, state, federal, or military law enforcement agency, that publishes a sexually explicit image in connection with the performance of his or her duties as a law enforcement officer, or law enforcement agency.
Offender need not be in Florida
The way the statute is written, the offender could be outside Florida and still fall under the purview of the statute. So long as the victim is in Florida,
(7) A violation of this section is committed within this state if any conduct that is an element of the offense, or any harm to the depicted person resulting from the offense, occurs within this state.
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If you have been made a victim of revenge porn and need assistance filing a civil action, or if you have been placed in a situation where you need to defend against such an action, contact our office or call 407-965-5519 for a free consulation.
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