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The Revenge Porn Epidemic Georgia Trial Lawyers Association Summer 2021 Features the Revenge Porn Epidemic Matt Kahn and Tom Giannotti

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The Revenge Porn Epidemic Georgia Trial Lawyers Association Summer 2021 Features the Revenge Porn Epidemic Matt Kahn and Tom Giannotti 8/25/2021 The Revenge Porn Epidemic Georgia Trial Lawyers Association Summer 2021 Features The Revenge Porn Epidemic Matt Kahn and Tom Giannotti “Revenge porn” is an unfortunate consequence of rapid technological development in conjunction with the regrettable human trait of spitefulness. The phrase “revenge porn” was born from the situation where a scorned lover uploads sexually explicit material to the internet without their former partner’s consent. However, revenge porn includes the distribution of any sexually explicit material without the consent of the individuals involved. Revenge porn is a dangerous form of sexual abuse. “Revenge porn” entered mainstream pop culture in 2007 when rapper Ray J released a sex tape with his former girlfriend, Kim Kardashian, without her consent. The media glamorized the sex tape, detracting from the seriousness of the sexual abuse. Since then, revenge porn has become a huge problem. The problem has been exacerbated by the ease with which sexual abusers can upload sexually explicit materials to “porn tube” sites, which are webpages modeled after YouTube that allow users to upload any video clips they like without much oversight. Clearly, not every individual who engages in revenge porn will be a music star who can afford to pay a punitive judgment — so how does someone who has fallen victim to revenge porn get justice? This article specifically considers a way to hold porn tube companies accountable, rather than holding the individual sexual abuser liable under state tort law, which may also be a viable option. Holding the Porn Tube Sites Accountable Porn tube sites have escaped responsibility for sharing and profiting from non-consensual content for too long. These companies have managed to hide behind Section 230 of the Communications Decency Act, 47 U.S.C. § 230, which governs website host liability. Under the prevailing view of Section 230, website hosts are not liable for content posted by users (i.e., third-party speech).1 Section 230 also preempts state law to the contrary.2 However, Section 230 does not protect sites from liability for federal crimes or other violations of law, such as copyright infringement, that is consistent with the provisions of Section 230.3 Congress has carved out limitations to Section 230, which was a step in the right direction for revenge porn victims and other victims of sexual abuse. In 2018, Congress enacted a set of laws known as the Fight Online Sex Trafficking Act (“FOSTA”) and the Stop Enabling Sex Traffickers Act (“SESTA”). FOSTA-SESTA created an exception to Section 230 that removed immunity for claims under the Trafficking Victims Protection Act (“TVPA”).4 This exception allowed for websites to be held accountable for any content that helped facilitate sex trafficking, or even consensual prostitution. 5 The TVPA explicitly provides victims with a civil remedy against “the perpetrator (or whoever knowingly benefits, financially or by receiving anything of value from participation in a venture which that person knew or should have known has engaged in an act in violation of this chapter).”6 To hold a porn tube website liable under the TVPA, a plaintiff would need to show that the site owner or operator knowingly assisted, supported, or facilitated the knowing recruitment, enticement, https://mydigitalpublication.com/publication/frame.php?i=714706&p=&pn=&ver=html5 1/5 8/25/2021 The Revenge Porn Epidemic Georgia Trial Lawyers Association Summer 2021 harboring, transporting, providing, obtaining, advertising, maintaining, patronizing, or soliciting by any means a person, knowing, or in reckless disregard of the fact, that means of force, threats of force, fraud, or coercion will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act.7 PornHub and other porn tube sites have run ads on web pages where non-consensual videos were posted, and viewed thousands of times, meaning that the site profited from these pornographic videos. However, the sites could theoretically argue that they profited from these videos without knowing about the circumstances surrounding the videos, effectively burying their heads in the sand. One recently filed case involving the now-indicted owners of the porn site GirlsDoPorn suggests that porn tube sites can be held responsible with the right evidence. The lawsuit Doe v. MG Freesites, Ltd., No. 3:20-cv-2440 (S.D. Cal., Dec. 15, 2020), alleges that MindGeek S.a.r.l. – a foreign company that owns and operates more than 100 pornographic websites, including PornHub — knew GirlsDoPorn was trafficking its victims by using fraud, coercion, and intimidation to get women to film the videos, but despite this knowledge, MindGeek continued to partner with GirlsDoPorn.8 MindGeek is alleged to have continued its partnership with GirlsDoPorn up until federal prosecutors shut down GirlsDoPorn by arresting and indicting its principals, never bothering to investigate or question the mounting evidence of sex trafficking that MindGeek received (including specific complaints from victims detailing the fraud and coercion they were subjected to by GirlsDoPorn).9 As the lawsuit notes, Section 1595 of the TVPA presents websites (and other businesses) frequented by sex traffickers with a choice: (a) deny services to suspected sex traffickers; or (b) provide services to the suspected traffickers, accept the profits from the transaction, but risk civil liability to the sex trafficking victims.10 “REVENGE PORN” ENTERED MAINSTREAM POP CULTURE IN 2007 WHEN RAPPER RAY J RELEASED A SEX TAPE WITH HIS FORMER GIRLFRIEND, KIM KARDASHIAN, WITHOUT HER CONSENT. THE MEDIA GLAMORIZED THE SEX TAPE, DETRACTING FROM THE SERIOUSNESS OF THE SEXUAL ABUSE. MindGeek’s most popular website, PornHub, was the eighth most popular website in the United States in 2019, with more visitors than Netflix and Wikipedia.11 Pursuant to MindGeek’s partnership with GirlsDoPorn, MindGeek hosted about 70 videos on a dedicated channel on PornHub alone.12 As of fall 2019, those 70 videos had more than 700,000 subscribers and were collectively viewed almost 700 million times.13 When MindGeek’s other websites, YouPorn, Tube8, and RedTube, are factored in, the videos on GirlsDoPorn’s channels on all of MindGeek’s tube sites collectively had nearly billion views.14 Despite numerous complaints from women featured in the videos that they were scammed into doing the videos and were suffering awful psychological and reputational effects as a result of MindGeek’s partnership with GirlsDoPorn, MindGeek repeatedly refused to take down these women’s videos.15 https://mydigitalpublication.com/publication/frame.php?i=714706&p=&pn=&ver=html5 2/5 8/25/2021 The Revenge Porn Epidemic Georgia Trial Lawyers Association Summer 2021 Even as the law currently stands, these porn tube sites’ tacit involvement in sex trafficking is ripe for civil litigation. Cases like the GirlsDoPorn lawsuit against MindGeek may become more common, especially since the women in that lawsuit against GirlsDoPorn were awarded nearly $13 million in compensatory and punitive damages.16 As greater public attention is drawn to the proliferation of non-consensual content on porn tube sites, porn tube sites appear increasingly concerned that Section 230 may not be enough to shield them from liability. Following the New York Times’ publication of an exposé on the victims of non-consensual pornography, MindGeek announced it was finally taking some steps to verify content posted on its websites.17 Yet as the problem of non- consensual pornography gains public attention, more victims have come forward who had previously felt powerless against companies like MindGeek. In sum, the TVPA likely provides the most promising avenue for recovery against porn tube sites under current law because it is an exception to the otherwise broad Section 230 immunity. The difficulty will be in proving that the porn tube site knew or should have known that “threats of force, fraud, or coercion” will be used to cause the person to engage in a commercial sex act (or that the person is under 18). Case law has yet to develop in the context of porn tube sites, and most case law involving the TVPA is in the criminal context. The Path Ahead The House of Representatives recently passed a bill that would outlaw revenge porn at the federal level. The new bill was passed as an amendment to the Violence Against Women Act and would ban knowingly or recklessly distributing “intimate visual depictions” of non-consenting individuals.18 The bill has bipartisan support but awaits a vote in the Senate. If the bill is passed into law, it will create a much clearer path to holding porn tube companies responsible for allowing the publication of revenge porn. It is important for the plaintiff’s bar to continue attempting to hold the porn tube sites accountable, while we await the passage of a federal ban on revenge porn. As the lawsuit notes, Section 1595 of the TVPA presents websites (and other businesses) frequented by sex traffickers with a choice: (a) deny services to suspected sex traffickers; or (b) provide services to the suspected traffickers, accept the profits from the transaction, but risk civil liability to the sex trafficking victims. ABOUT THE AUTHORS Matt Kahn is an associate with Butler Law Firm, where he specializes in cases involving serious injuries or death and difficult corporate defendants. Kahn is an active member of GTLA and a graduate of the LEAD program. He can be contacted at matt@butlerfirm.com or 678-940-1444. https://mydigitalpublication.com/publication/frame.php?i=714706&p=&pn=&ver=html5 3/5 8/25/2021 The Revenge Porn Epidemic Georgia Trial Lawyers Association Summer 2021 ... » Tom Giannotti is an attorney with the Butler Law Firm, where he represents clients throughout Georgia in serious personal injury and wrongful death cases.
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