Revenge Porn Angel Quiles
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Seton Hall University eRepository @ Seton Hall Law School Student Scholarship Seton Hall Law 2016 Revenge Porn Angel Quiles Follow this and additional works at: https://scholarship.shu.edu/student_scholarship Part of the Law Commons Recommended Citation Quiles, Angel, "Revenge Porn" (2016). Law School Student Scholarship. 832. https://scholarship.shu.edu/student_scholarship/832 Angel Quiles Thesis A federal revenge-porn bill is expected in the near future, and many states have already adopted their own laws. However, there has not been a common consensus with a federal law. This paper will analyze the different state laws and court rulings to create a federal law, which will address a famous revenge-porn case – Lastonia Leviston v. Curtis Jackson (50 Cent). My newly created federal law should balance the individual’s rights to free speech and the government’s interest in protecting its citizens from unprotected speech. Revenge Porn Defined Revenge porn is defined as the nonconsensual postings of images that were originally given to another with the implied expectation of confidentiality.1 According to Miami law professor, Mary Anne Franks, these postings should be considered as nonconsensual pornography.2 Professor Franks defines these acts as such because of the lack of consent that occurs when someone takes another’s private, nude, or sexual photos and then distributes them.3 Posting these images may inflict emotional damage on the victim due to the deep and personal betrayal of the act.4 Since victims do not retain the power to control over who views their images their personal images can become circulated throughout the U.S., and sometimes the world. Usually grave consequences follow the victims once their intimate images reach the internet. Some victims have gained relief through state tort laws and criminal actions to combat revenge 1 www.dailydot.com/politics/federal-revenge-porn-bill. 2 Id. 3 Id. 4 Id. porn. State law violations, such as invasion of privacy, defamation, and intentional inflictions of emotional distress are only some examples of how victims have tried to combat such acts. However, the First Amendment is the biggest obstacle victims will face when seeking civil relief and/or when the government seeks criminal prosecution. Criminal and Civil Actions of Revenge Porn A revenge porn analysis should begin with torts and then balance the individual’s rights of relief under the law of torts with our Federal Constitution.5 Damages for a tort action have allowed plaintiffs to recover for physical and economic injuries.6 Torts have also allowed relief for assaults on an individual’s reputation or invasion of one’s privacy.7 The types of torts that we will address in this paper will be invasion of privacy, “false light” portrayal, defamation, and intentional infliction of emotional distress.8 These torts are some of the ones that may allow for a party to seek damages for injury to their reputation in society. Before discussing tort law we need to address the common law doctrines of contract law. The principles of contract law will provide a background on the breach of implied and expressed assurance of confidentiality, which is the link that would allow for tort law to be used. State Contract Law The philosophy of contracts infers that parties will come to an agreement whereby there will be a voluntary exchange of mutual benefits and considerations.9 If there is a breach in the 5 See Amanda Levendowski, Note, Using Copyright to Combat Revenge Porn, 3 N.Y.U. J. Intell. Prop. & Ent. L. 422, 424 n.9 6 See, e.g., Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 395 (1971) (“[D]amages have been regarded as the ordinary remedy for an invasion of personal interests in liberty.”). 7 Id. 8 See Restatement (Second) of Torts § 652D (1977) 9 See, e.g., Edwards v. Kearzey, 96 U.S. 595 (1897) agreement then remedies incur to fix damages that were caused by the broken promise.10 The law of contracts identifies the binding effects of such agreements no matter if it is explicit or implicit.11 Under the Second Restatement of Contracts, “A promise is a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made.”12 The legal effects are the same no matter if that promise is oral or written, expressed or implied. Under Cohen v. Cowles Media Co, Cohen, an associate with a gubernatorial candidate, wanted to provide information to a newspaper about a rival.13 Cohen gave such information in return for the newspaper’s assurance of confidentiality by being anonymous.14 However, after receiving the information from Cohen the newspaper company disclosed Cohen identity as the individual who provided the information.15 Due to the alleged breach of confidence by the newspaper company, Cohen got fired from his associate position. Because of Cohen’s termination of employment, a suit was filed against the newspaper for damages of a breach.16 The Supreme Court of Minnesota held that Cohen was not able to establish a breach of contract.17 The court did not find a breach of contract because a contract was not formed since the parties did not intend to create one.18 The court did not believe all promises should be considered having binding power.19 The court concluded that ethical relationships should not be 10 Id. 11 Id. 12 See, e.g., Restatement (Second) of Contracts § 2 (1981); § 2 cmt. 13 457 N.W.2d 159 (Minn. 1990), rev'd on free speech grounds, 501 U.S. 663 (1991). 14 Id. 15 Id. 16 Id. 17 Id. 18 Id. 19 Id. considered with legal rigidity.20 Thus, the promise that occurred, between Cohen and the newspaper company, was more similar to a moral commitment than a legally binding contract.21 However, the court also concluded that Cohen should still be able to state a claim under the doctrine of promissory estoppel.22 Promissory estoppel implies that a contract exists in law although it does not exist in fact.23 Under the doctrine of promissory estoppel, “a promise expected or reasonably expected to induce actions by the promisee that does induce action is binding if injustice can be avoided only by enforcing the promise.”24 Despite approving that theory, the Minnesota Supreme Court ruled against Cohen on the ground that allowing him to recover damages would violate the First Amendment Free Speech Clause.25 The media had the judgment in their favor. However, the Supreme Court of the United States later reversed the judgment, which then allowed for plaintiffs to recover from a broken promise of confidentiality under the doctrine of promissory estoppel.26 Under Barnes v. Yahoo, the United States Court of Appeals for the Ninth Circuit agreed with the theories, understandings, and applications of promissory estoppel and the claim of a broken promise of confidentiality.27 In Barnes, a revenge porn victim filed suit against Yahoo for failing to remove explicit photographs of her; although, an employee of Yahoo advised her that it would be removed from their website.28 Barnes was not able to sue Yahoo under tort law because of the Telecommunications Act of 1996, since Yahoo would not be considered as the 20 Id. 21 Id. 22 Id. 23 Id. 24 Id. 25 Id. 26 Id. 27 570 F.3d 1096 (9th Cir. 2009). 28 Id. “publisher” or “speaker” of the information that was provided by another content provider.29 However, the court assisted with the plaintiff’s argument and suggested a claim be brought against Yahoo under section 90 of the Second Restatement of Contracts.30 Section 90 recognizes a cause of action for promissory estoppel, which does not bar such a suit under the Telecommunications Act of 1996.31 Courts have enforced private bargains under promissory estoppel for individuals who care to choose judicial remedies for a breach in keeping a promise. In Barnes the court held that if the court were to take this route and enforce such agreements it would not encroach on the rights provided by the Telecommunications Act of 1996.32 The Barnes court found that contract law deals with a bilateral agreement instead unilateral actions that are addressed in telecommunication law.33 In a contracts law case that addresses the promissory estoppel doctrine, the breach does not come from any non-contractual action or capacity of the defendant, but instead from an enforceable promise that is perceived as a contractual obligation.34 The two contract cases, aforementioned, are important decisions for the progress of revenge porn litigation. Although the court was well aware that there is a conflict between privacy and free speech, the promissory estoppel doctrine is considered flexible. Promissory estoppel is flexible enough to extend contract law beyond its commercial connections to the law. Each court has provided the opportunity to plaintiffs to argue for a breach of implicit assurances of confidentiality. Although a plaintiff does not have an ordinary contract claim, the courts 29 Id. 30 Id. 31 Id. 32 Id. 33 Id. 34 Id. looked at state-common law doctrines in order to hold an individual liable for breaking a promise. This analytical understanding of contract law is important when forming a new perspective of tort law and its usage for revenge porn. State Tort Law The right to privacy has been analyzed under many different perspectives throughout our history. The common census amongst them all describes privacy as an autonomous individual having the right to be left alone.35 The modern concept of privacy can be perceived as extensive, flexible, and even unclear at times because its boundaries have increased, tremendously, in our judicial system.36 Therefore, “privacy” should be understood in a nuanced manner having many meanings rather than in a traditional way.