Getting Even Just Got Harder: Marketing and the Law

the attention economy

Guest post by Richard B. Newman, our marketing and law contributor.

marketing and law
Image courtesy of Branding Strategy Insider

On January 9, 2018, the Federal Trade Commission and the state of Nevada announced charges against parties responsible for a revenge porn site for violation of federal and state law by posting intimate images of people, together with their personal information, without their consent.

The complaint filed in the United States District Court for the District of Nevada, charged that the website, is dedicated solely to revenge porn – or nonconsensual pornography – and has solicited intimate pictures and videos of victims, together with their personal information such as their name, address, employer, and social media account information.  According to the complaint, the site urged visitors to “Add Your Ex,” and to “Submit Pics and Stories of Your Ex.”

The complaint asserts that defendants have taken in revenue by charging consumers fees to have images of them taken down from the site, either directly or through the purportedly “independent” reputation management services.  Defendants are also alleged to have sold advertising on the website, including full site takeover ads, header banners, sidebar banners, post banners, leaderboards, and sidebar sponsor link lists.  From January 2014 through April 2016 alone, approximately $4 million in revenue is alleged to have been generated.

These images can dominate search engine results for the victim’s name, are publicly available, and have often been associated with the victim’s social media presence.  As a result, the victim’s family, friends and even employer can view the images.

The complaint states that that posting of the intimate images and personal information often leads visitors to engage in direct contact with victims and post crude commentary on the website about victims’ bodies and alleged promiscuity, resulting in vicious harassment of the individuals depicted.

Specifically, according to Plaintiffs, Defendants began operating the website in 2011.  In 2013, GoDaddy informed one of the Defendants of reports of child exploitation and underage content on the website.  GoDaddy also purportedly informed one of the Defendants that an investigator from an internet-crimes-against-children taskforce and a police detective were attempting to get in touch with the website operators.  The complaint alleges that one of the Defendants subsequently changed the contact name provided to GoDaddy for the website, changed the contact address, and moved the website to a different registrar.

According to the complaint, the website makes clear that the purpose of such posting is to harm the pictured individual.  Defendants have purportedly advertised the website as “MyEx GET REVENGE!” and “Naked Pics of Your Ex.”  The site has allegedly invited individuals to “Add Your Ex,” “Submit Pics and Stories of Your Ex,” “Search for your Ex,” or “Find Someone You Know.”

In past versions of the site, when one clicked on “Make a Post” the site stated, “Add Someone. Feel Good.” The site also described itself as a site where one could “Get the dirt before you get hurt or submit your ex gf and bf and get revenge!”

Defendants supposedly receive and compile the intimate images and personal information, and post the images together with other content, such as votes in the form of star ratings, as well as view counts, for each individual’s publicly available entry on the website.  Defendants are alleged to possess actual knowledge that many of the consumers whose intimate images and personal information they posted on the website did not consent to postings.

Victims of revenge porn often suffer substantial harm from having their intimate images and personal information posted on the site.  This posting of intimate images and personal information is an unwarranted invasion of privacy into victims’ lives.  In addition, it causes injury in the form of depression, anxiety, loss of reputation and safety fears.  Many victims ultimately incur medical expenses, such as the cost of medications or professional mental health care, as a result of such practices.  Victims also incur legal expenses, frequently seeking out legal assistance to have their intimate images and personal information removed from the site and to get relief against harassers.  Victims also lose time working with local police and authorities concerning these postings of their intimate images and personal information.

The complaint alleges that the defendants’ practices constitute unfair acts or deceptive practices in violation of the FTC Act.  In addition, Nevada alleged that the defendants’ conduct constitutes a deceptive trade practice under Nevada law.

In its press release, Acting FTC Chairman Maureen K. Ohlhausen stated that “ uses reprehensible tactics to profit off of the intimate details of individuals’ private lives.  People who were featured on this site suffered real harm, including the loss of money they paid to remove intimate images and personal information, loss of jobs, and being subject to threats and harassment.”

The complaint seeks an injunction barring further violations and disgorgement of “rescission or reformation of contracts, restitution, the refund of monies paid, and the disgorgement of ill-gotten monies.”

The Commission, together with Nevada, has approved a proposed settlement with one of the defendants who is banned from posting intimate images and personal information of others on a website without notice and consent, required to destroy all such intimate images and personal information in his possession, and banned from charging individuals fees for removing such content from a website.  He is also permanently restrained from serving as an officer or director of any business unless he has knowledge of the ordinary operations of that entity.  He has also agreed to a $205,000 judgment, which the order will suspend upon payment of $15,000 in light of his inability to pay more.  The payment received will be used to provide redress to individuals who paid him take-down fees.

Thirty-eight states, including Nevada, and the District of Columbia, have passed laws making the dissemination of intimate images illegal in certain circumstances.  Additionally, a federal statute criminalizes the use of an interactive computer service to intentionally harass or intimidate a person through “engag[ing] in a course of conduct that causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress to a person.”

This is the second time that the FTC has acted against revenge porn sites.

Often, such defendants claim that they have immunity under Section 230 of the Communications Decency Act since they are not the publisher of the images.  However, in the past courts have refused to grant immunity to website operators that actively participated in the creation of offending content.

Key Takeaway:  The regulatory action is a significant statement from the Federal Trade Commission that revenge porn causes are extremely harmful to its victims and that operators of such websites that exploit its victims are subject to aggressive prosecution.

NewmanRichard B. Newman is an Internet marketing compliance and regulatory defense attorney at Hinch Newman LLP focusing on advertising and digital media matters. His practice includes conducting legal compliance reviews of advertising campaigns, representing clients in investigations and enforcement actions brought by the Federal Trade Commission and state Attorneys General, commercial litigation, advising clients on promotional marketing programs, and negotiating and drafting legal agreements. You can find him on Twitter or on LinkedIn.

ADVERTISING MATERIAL. These materials are provided for informational purposes only and are not to be considered legal advice, nor do they create a lawyer-client relationship. No person should act or rely on any information in this article without seeking the advice of an attorney. Information on previous case results does not guarantee a similar future result. Hinch Newman LLP | 40 Wall St., 35thFloor, New York