The new “Revenge Porn” statute provides for both civil and criminal remedies to protect Florida residents from being exploited by others when they had an expectation that private and explicit photos were to stay private.
Most of us have been there before. We split up with an ex and things are less than cordial. We hope to move past the break-up and start fresh but unfortunately, things don’t always go smoothly. In severe cases, some people resort to the internet to post hurtful information which may include nude photos of the other party. With today’s technology, the internet provides a vast platform for scorned lovers to seek revenge. Most people have a smartphone that provides easy access to the internet and posting a picture can be done within a matter of seconds. Depending on the nature of the photo posted, it can result in embarrassment, difficulties gaining employment, and an overall damaged reputation.
Revenge porn is when a person posts explicit photos, mostly nudes, of an ex on the internet without their permission. Sites such as myex.com allow users to upload photographs and descriptions about their exes. Once a photo is uploaded to the internet, it’s nearly impossible to get it removed. Posts can spread like wildfire and become viral within a matter of hours. Once this occurs, the damage is difficult to repair. Luckily, once October 1st rolls around, Florida law will provide remedies for those damaged by this type of action.
Until recently, victims of revenge porn only course of action was through common law or seeking civil copyright protection. According to CNN, a woman had to copyright her breasts because the state didn’t provide her with any protection. Her ex was posting explicit pictures of her breasts online without her consent, so to stop him, she protected herself the only way she legally could. Florida has joined the few states that are taking action to keep up with the fast changing times and provide protection to victims of revenge porn. On October 1, 2015 Florida’s “revenge porn” law will take effect. Florida Statute 784.049 uses the term “sexual cyberharassment” to define what’s commonly referred to as revenge porn. The purpose of the new law is to prohibit a person from willfully and maliciously sexually cyber harassing another person.
The law will provide for civil remedies as well as criminal penalties. Florida Statute 784.049 begins by describing its purpose:
“(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.”
Florida Statute 784.049(2)(c) goes on to define “Sexually Cyberharrass” as:
“[T]o 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.”
The law will provide victims the opportunity to seek civil damages and the state can pursue the poster for criminal charges. Criminal charges start at a first degree misdemeanor and go up to third degree felony for repeat offenses. The statute provides that law enforcement officers don’t need a warrant to arrest a person when there is probable cause to believe that the person has committed the criminal act of “sexual cyberharassment.”
(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.
Civil action can come in the form of injunctive relief, monetary damages, and reasonable attorney fees and costs. Monetary damages can include $5,000 or actual damages, whichever is greater.
” (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.”
The way the statute is written, it provides that the harasser does not need to reside in Florida so long as the act occurred within the state or the person suffers harm within the state.
” (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.”
There are a few exceptions to the revenge porn law which includes 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.
If you believe you may be a victim of revenge porn, please call us at The Parrish Law Firm, P.A. to schedule a consultation and discuss your rights. 813-643-4529
*Thanks to Carla Pollara, future attorney extraordinaire, for the research and valuable contribution to this Blog
