Do Not Post What Should Be Kept Private


When you met her during drop-off at your children's school she seemed like such a modest woman, hair pulled back in a pony tail as she kissed her kid goodbye at the classroom door.  You never would have guessed what she and her husband enjoyed together behind closed doors.  But one morning, her eyes looked puffy from crying.  You overheard her saying that her husband had moved out after she caught him with another woman.  Later that morning, when you checked your phone, you saw a picture of her husband all over Facebook.  Obviously the photo was taken in a moment of intimacy between her and her husband, but she had conveniently cut herself out of the frame and graphically captioned the picture, identifying her husband as a “cheater.”  Then, she tagged him so that all of his “friends” would know what he had done.

As of October 1, 2013, her public posting of their private moment is illegal under the new “revenge porn” statute.  California Penal Code section 647(j)(4)(A) makes it a crime to distribute images of “the intimate body part” of another “identifiable person,” if the images were taken with the understanding that they were to remain private.  (Pen. Code § 647(j)(4)(A).)  Oh, it is more complicated than it sounds, and certainly does not apply to all graphic pictures.  It is now a misdemeanor to post pictures taken of someone else under very specific circumstances.  The image must be taken of another person; “selfies” are not a crime, even if someone else is the one to share them.  The image must reflect an intimate body part, which is carefully defined and does not include all suggestive poses.  The picture must have been taken “under circumstances where the parties agree or understand that the image shall remain private.”  And when the picture was distributed, there must have been intent to “cause serious emotional distress.” 

During their marriage, they may have enjoyed photographing each other “in the act” for their private viewing.  But now, posting the pictures on social media, or otherwise distributing them, during a nasty divorce proceeding is a crime.  While common sense dictates that what was created in “private” should stay “private,” common sense does not always prevail in the heat of a custody battle. 

In addition the consequences under the Penal Code, which include a $1,000 fine and up to 6 months in the county jail, posting inappropriate pictures to get back at her spouse could have significant consequences in her Family Law proceedings.  The person evaluating child custody may conclude that her decision to post inappropriate pictures of her ex reflects poor judgment, and may recommend that she have limited contact with her children.

Today it is so easy to snap a shot of almost anything with our smart phones and then share it in multiple public forums within minutes.  But once it is “posted,” it's public and there is very little that can be done to completely remove it from the electronic world.  Even though she took the picture of him off her Facebook account before lunch, several people had already downloaded the image, and some had even reposted it on other social media.  Her soon to be ex-husband may have been the one to cheat, but in a “no fault” state, it will make no difference in the dissolution process.  Her decision to post that picture to get back at him may prove quite prejudicial, not only in the custody proceedings, but also if he presses charges and she's found guilty under California's new revenge porn statute. 

This is just another reason to live in the moment, no pictures please.  But if you must make a record, resist the urge to share the very intimate moments with others out of anger later.  It could cost you, in more ways than one.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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