Revenge Law May Help Prevent Posting of Explicit Images Online

March 28, 2014

We all read the stories in the news. After a relationship sours, a scorned ex finds intimate photos that had been taken privately, and during better times, and posts them online as a way to get back at the lover who left. So-called “revenge porn” has become a hot topic, and is under scrutiny at the federal and state level.

In Wisconsin, the legislature recently passed 2013 Senate Bill 367 to address this topic, and will be sending it to the Governor for signature. The new law will make it a misdemeanor to publish or post a “private representation” without the subject’s consent, regardless of whether the subject granted permission to capture the image. The act would be punishable by up to $10,000 in fines and nine months in jail.

What is a “private representation?” The law defines it as a “nude or partially nude” depiction of a person, or a depiction of a person “engaging in sexually explicit conduct that is intended…to be captured, viewed, or possessed only by the person who…captured the representation,” or who was given the depiction, with the consent of the person depicted. What does “post or publish” mean? The law specifically states that it includes posting or publishing on an internet website that “may be viewed by the general public.”

The proposed law notes a few instances where the law does not apply. These include: parents or guardians, where the private representations do not violate laws regarding Crimes against Children (Wis. Stat. ch. 948) and are not for commercial purposes; law enforcement working in official capacity while investigating or prosecuting a crime; a person who posts or publishes a private representation that is newsworthy or of public importance; or an internet service provider.

If this law is passed, what will it mean? For individuals, hopefully a deterrent against posting explicit images online as a way to embarrass someone. The law would also provide remedies for those who are victims of “revenge porn” that are not presently available. Wisconsin has a “right to privacy” statute, Wis. Stat. § 995.50, which generally prevents invasions of privacy and misuse of a person’s image, but it would be arguable in many situations as to whether that statute would apply to all “revenge porn” situations. The proposed law would clarify the consequences for those who choose to post others’ private images improperly.

Note: Senate Bill 367 was signed into law on April 8, 2014.

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For more information about "Revenge Law May Help Prevent Posting of Explicit Images Online," contact Andrew J. Clarkowski at aclarkowski@axley.com or 608.283.6705.