Taking and sharing pictures and videos is easier than ever. With a cell phone, tablet, or computer, we can connect with others near and far in an instant and highly personal moments can be preserved and shared from the privacy of our own homes. Generally, we expect that the people with whom these images or videos are shared will keep the content to themselves and understand it is not their place to post it to the internet or send it to other individuals who were not the intended viewers.

Sometimes, an intimate image or video you took of yourself and shared in confidence with a trusted partner can be used in a way in which it was never intended. For example, an ex-partner may share those intimate images after you terminate the relationship in retribution for breaking up. Someone whom you believed to be a trusted (current) partner may be sharing intimate images or videos of you online, without your knowledge or consent for financial gain or other personal reasons. Or, perhaps, you connect with a potential romantic partner online and, at their urging, send an intimate image, only to find that this “person” was engaged in a “catfishing,” romance, or extortion scam and requested the image or video solely for the purpose of trying to blackmail you for money. Unfortunately, these are all common scenarios in the digital age. Anyone can fall victim to them and the impact can be devastating.

This blog post from Buckingham provides an overview of “non-consensual pornography,” non-legal and legal options available to victims, how to pursue a legal action, and essential steps you can take to protect your rights and seek justice against those who have wronged you. Whether you’re a victim seeking recourse or someone interested in understanding the legal implications of this distressing issue, this post is your guide to navigating the complex world of suing someone for posting nude photos without consent.

Is Revenge Porn a Crime?

Indeed, the non-consensual sharing of such intimate images is unlawful and actionable as a matter of law. It does not matter whether the person with whom you shared the images is your spouse of many years or a person with whom you just made a digital connection a day earlier. The non-consensual sharing of intimate images with third parties other than the intended recipient is an invasion of your personal privacy and can be addressed through the filing of a civil lawsuit. In many situations, these lawsuits can be initiated anonymously to protect your privacy and reputation. They can be used to stop the spread of the sensitive content, prevent the at-fault party or parties from spreading such content in the future, and, in some situations, entitle you to other remedies – including monetary compensation – for the harm you have experienced.

Further, in the majority of states, the non-consensual sharing of such sensitive or pornographic images is a criminal offense for which the perpetrator can be prosecuted. The unlawful sharing of such content – often referred to as “revenge porn” – can carry significant penalties and demonstrate to the perpetrator that their conduct is not only wrong, on an ethical, moral, or civil law level, but a criminal act.

What Is Revenge Porn or Non-Consensual Pornography?

Non-consensual pornography is, generally, when a nude or sexually graphic image or video of you is shared without your consent. While the term “revenge pornography” or “revenge porn” is often used to refer to this type of content, “revenge pornography” is just one type of non-consensual pornography, which, as discussed below, can come in a variety of forms.

The term “revenge porn” generally refers to a situation where non-consensual pornography is shared or published for the specific purpose of causing harm to – or exacting revenge upon – the person depicted in the intimate content. The sharing of intimate images or videos to deliberately cause harm or take revenge often arises after the victim ends a relationship with their intimate partner who is in possession of the sensitive content at issue. These images or videos may have initially been taken with the victim’s consent or shared with the former intimate partner by the victim. However, subsequent dissemination of the materials to third parties – who were not intended recipients – is still unlawful.

While “revenge porn” is the most commonly recognized type of non-consensual pornography, non-consensual pornography can also arise in other situations such as when:

• Intimate images or video are taken of the victim without their knowledge in a place where they have an expectation of privacy, such as where a hidden camera is placed in (e.g.) a restroom, dressing room, or hotel room.
• The perpetrator gains unauthorized access to intimate images or photographs of the victim that are maintained privately on a device or in “cloud” storage.
• The perpetrator engages in what is known, colloquially, as “upskirting” or “downblousing” meaning that the perpetrator captures content of intimate body parts of the victim without their knowledge, typically in a public place.
• The perpetrator creates “deepfaked” content of the victim, using technology to create hyper-realistic intimate or sexually explicit content that appears as though it actually depicts the victim.
• The perpetrator creates a fake dating profile or social media account and engages with the victim as though they are a potential romantic interest, induces the victim to send intimate images or video, and then distributes that content without the victim’s consent, sometimes after threatening to do so if the victim does not pay the perpetrator to maintain the content as private.

These are just a few examples of conduct that can fall within the general definition of non-consensual pornography and it is important to remember that anyone can be a victim. While some of the most highly publicized incidents of non-consensual pornography involve female victims in heterosexual relationships, people of any gender identity or sexual orientation can be victims of non-consensual pornography.

Regardless of the particular situation in which one finds themselves a victim of non-consensual pornography, the impact is devastating. Having one’s extraordinarily private content shared with third parties can cause emotional distress, anxiety, depression, humiliation and embarrassment. If the content is shared by someone the victim trusted, they may have difficulty engaging with new romantic partners because of the gross breach of trust they experienced. Further, if the content is attached to a victim’s name or if third parties can identify (or have identified) the victim, it can have a serious impact on their personal and professional reputation. The victim may face adverse employment consequences in their current position or fear the impact on prospective employment opportunities. They may face social isolation or be shamed by friends or family members who do not understand that the victim is just that: a victim of someone else’s gross and nefarious conduct.

Handling this situation can be extremely difficult and isolating. As discussed below, taking action to stop the harm at its source in a timely and effective manner is crucial, however, one’s mental health cannot be ignored in this process. If you are the victim of non-consensual pornography, speak with a trusted friend or family member, medical professional, or consider reaching out to an organization that may be able to help you access resources regardless of whether you wish to secure legal representation. For example, the Cyber Civil Rights Initiative provides a 24/7 helpline to help victims in these situations.

If and when you are ready to take action to address the situation, you should strongly consider speaking to an attorney with experience in this area to discuss your options and ensure your rights are preserved throughout the process. In this article we provide an overview of the types of remedies that might be available, general information about the laws related to non-consensual pornography, and what you can expect if you do decide to move forward with a civil action.

Can You Handle Non-Consensual Photography Outside of Court?

Some victims of the non-consensual sharing of intimate content are not interested in engaging in litigation or involving the criminal justice system. Their goal is to have the existing content removed, stop the threats of future publication (either to specific individuals or to the internet at large), or have a plan in place if the content is inappropriately disseminated in the future. These goals often can be accomplished out of court, but it is important to devise a plan of action based upon a careful analysis of the specific facts and circumstances of the situation to address the matter effectively.

In sum, if your intimate images or videos have been shared without your consent or if someone is threatening to do so, you are not alone and have a number of options to address the situation. As this problem has continued to grow in recent years, some big tech companies, like Google, as well as government agencies and nonprofit entities have devised resources to aid victims and provide self-help methods to handle the matters themselves.

Options for Addressing Non-Consensual Sharing of Intimate Images

Victims of non-consensual pornography can take a variety of both non-legal and legal steps to handle the horrible situation in which they find themselves. Having the right attorney to help guide you through the available options, as well as the risks and costs attendant to the same, can be very helpful to address your specific situation. However, the following are, generally, some options that victims can consider.

1. Non-Legal Remedies

When content has been shared or disseminated online, as opposed to circulated amongst a limited group of individuals, there are options for seeking the removal of the content from the location where it is published or limiting its visibility through widely available search engines.

For example, if intimate content depicting you has been published to the Internet and is appearing in search results on Google, you can request that the content be “de-indexed” through submitting a request to Google through their portal that is intended to address such situations. It is important to note that even if Google does take action – which it is not required to do – the content will not necessarily be removed from the site that hosts the content so it is unlikely to completely address the issue. Further, the request form does ask for the full name of the victim. However, this can be a cost-effective option for victims to limit the visibility of the content.

Additionally, if images are shared to social media, many platforms permit reporting of such content to try and obtain a removal. As with Google, making a report does not ensure removal, nor are the platforms required to honor your request. If your photos were shared in a news article, read our guide on “How to Remove News Articles from Websites”. If your images have been shared via social media and you feel that you’re being targeted through harassment, read our post on “How to Report Social Media Harassment.”

Likewise, many websites hosting pornographic content provide an option for reporting non-consensual pornography through a web form or an email address provided by the site. Contacting these sites may be effective, but it also does not always come without risk, especially if the website is a “forum” and, thus, moderated by volunteers; the website does not appear to have any sponsors or advertisers; or the website is based in a foreign country. Some sites are run by nefarious individuals who, in response to a request for removal, may take down the “target” video or image, only to republish the content under a different name or on an affiliate site they control. We have seen some websites that actually republish the content further – meaning that they make additional copies of the content under different file or video names – after the site has been asked to remove the target content. Thus, while this do-it-yourself option for addressing the problem may result in a favorable outcome, there is a possibility that it can make the situation worse.

Additionally, there are a larger number of sites that will simply ignore requests for removal even if they have “policies” that claim that non-consensual pornography will be taken down upon request. This can, understandably, be frustrating for victims and give the misconception that because their request has been ignored, there is no hope of getting the content removed. Though not guaranteed, sometimes having an attorney make a request on your behalf – even if you’ve already reached out to the site – can change the outcome and elicit a favorable result.

2. Legal Remedies – Criminal Prosecution

In terms of legal remedies, many jurisdictions do have criminal statutes addressing the non-consensual sharing of pornographic images or videos. Seeking assistance from law enforcement is often most effective when you know the person who is sharing the content and you are located within the same location – such as when the content is being shared by a former romantic partner. This may also be helpful where the non-consensual pornography was obtained, for example, through the placement of a hidden device in a place you visited and you can identify the origin of the video or images. In these situations, law enforcement can help address the matter and the perpetrator may be subjected to criminal penalties. However, some victims are wary of engaging with law enforcement for a variety of reasons, such as concerns that the matter won’t be handled with the requisite sensitivity or that the law enforcement agency does not have sufficient resources to address the matters in a swift and effective manner. While you obviously do not need an attorney to make a police report or file a criminal complaint, many victims find value in having an attorney help them through this process, especially if they are also interested in pursuing a civil action for damages.

3. Legal Remedies – Civil Law

Victims of non-consensual pornography can also address the issue through the assistance of a civil attorney. How the matter can or will be addressed will depend upon the facts of the case, but amongst the possible options they can provide for handling the matter may include:

• Contacting the perpetrator directly through a cease and desist letter or demand letter to put a stop to the spread of the content at its source and secure the cooperation of the perpetrator to identify the locations where the information was shared, assist in removing the content, and enter into a settlement agreement that may compensate the victim and ensure that the problem is resolved fully;
• Contacting sites where the content has been shared to request or demand removal;
• Issuing copyright takedown notices to sites where the content has been shared or the companies that host the sites where the content is located if the image or video were
• Filing a civil lawsuit to, amongst other things, identify the source of the publication, compel removal of the content, and/or obtain a monetary award for the victim that can, amongst other things, compensate them for their pain and suffering related to the sharing of information, cover their legal expenses relative to handling the situation, and/or punish the perpetrator.
• Filing for a civil protection order that can prohibit the perpetrator from engaging with the victim whatsoever, whether in person or online, and stop them from publishing the content at issue.

These are but a few of the ways that a civil attorney can assist with the handling of a matter involving non-consensual pornography. Practitioners experienced with these issues can often help you come up with a comprehensive plan to address the situation.

4. Practical Considerations when Addressing Non-Consensual Pornography

Regardless of the approach that you take, it is important that you take affirmative steps to address the situation quickly, especially if the content has been published to the internet on a public forum. In our experience, if an intimate image or video is shared publicly on the internet, there is a much more significant risk that the image will be spread further and, often, very quickly. This risk often arises because sites featuring pornographic content are “scraped” by other websites that rely upon pornographic content to drive traffic and, thereby, make money. The more content is disseminated, the more difficult it is to ensure that the content is completely eradicated.

With that said, even if you only recently became aware of the fact that intimate content depicting you has been spread broadly on the internet, you should know that there are options and people willing to help. Any step taken towards regaining control over your sensitive images is a step in the right direction and can help give you peace of mind.

Privacy Laws and Non-Consensual Pornography

The law in the United States is beginning to catch up with the increasing problem of non-consensual pornography and the devastating impact it has on its victims. Recently, there have been a number of cases that have put a spotlight on this issue, including a case in Texas where a jury awarded $1.2 billion in damages to a victim of a malicious scheme by her ex-boyfriend to, amongst other things, disseminated non-consensual pornography with the intent that it would be nearly impossible for her to remove all of the content and escape the reputational harm it caused.

In recognition of the ever growing problem of non-consensual pornography, nearly all states have enacted a specific statute that punishes non-consensual pornography. The requirements of each statute differ, including what is actually considered “non-consensual pornography.” In many states, there is a requirement that the perpetrator published the content with intent to harass the victim, cause serious emotional harm to the victim, or to coerce the victim into taking some action that the perpetrator desires. Another common requirement is that the perpetrator published the content knowing that the victim did not consent to its distribution.

While these requirements appear fairly straightforward and can be supported through circumstantial evidence, establishing the perpetrator’s state of mind – e.g. knowledge or intent – in undertaking harmful actions can sometimes present challenges, especially in criminal cases where the burden of proof is “beyond a reasonable doubt.” Claims by a perpetrator that their publication of the content was inadvertent or that they did so for a reason other than to cause the victim harm or coerce them into taking some action can make it more difficult to secure a conviction and may give rise to doubt in the mind of the jury as to whether the harmful conduct was truly intentional. While it will be the prosecutor’s job to make sure that they can prove all elements of the crime, victims should be aware of some of the difficulties presented in these cases and speak with law enforcement and the prosecuting attorney regarding expectations for the outcome.

If a conviction is secured, the punishment that a perpetrator will face varies from state to state. In many jurisdictions non-consensual pornography is a misdemeanor and the punishment can include up to a year in jail and/or statutory penalties. However, in a number of these jurisdictions, any subsequent charges for non-consensual pornography crimes will result in a felony charge, thus, strictly penalizing repeat offenders. There are also other jurisdictions, such as New Jersey, Illinois, and Wisconsin, where non-consensual pornography is charged as a felony even if it is the perpetrator’s first offense. Felony convictions naturally come with steeper fines and can result in incarceration for a number of years.

Some states, in addition to having statutes that specifically establish non-consensual pornography as a criminal act also have statutes that provide for civil remedies, such Ohio (Ohio Revised Code, R.C. 2307.66) and Nebraska (Nebraska Revised Statute 25-3503).

Even in states where there is no specific civil statutory remedy or cause of action for victims of non-consensual pornography, there are several different tort claims that will enable a victim to seek damages – out of pocket expenses, compensatory damages for emotional harm and, sometimes, attorney’s fees – to compensate them. Claims that can be raised include common law invasion of privacy torts, such as publication of private facts or, if the content was secured surreptitiously without your knowledge or consent, intrusion upon seclusion. Intentional infliction of emotional distress is another type of tort claim that can also, typically, be pursued in these cases.

Notably, in a civil lawsuit, the burden of proof is lower than in a criminal case. In a civil case, you only need to establish all elements of the claim – including the state of mind of the perpetrator – by a “preponderance of the evidence”. Thus, even if a victim has sought assistance through the criminal justice system and the perpetrator was found “not guilty” or if the prosecutor declines to pursue the charge because they do not think they can show guilt beyond a reasonable doubt, you still may be able to prevail in a civil lawsuit.

Additionally, because the primary goal of a civil lawsuit is to secure remedies for the victim, as opposed to punishing the perpetrator, the remedies that civil lawsuits can provide, as discussed below, can be helpful to allow a victim to remediate the harm caused and allow them to move forward with their lives.

How to File a Civil Lawsuit for Non-Consensual Pornography

If you are interested in pursuing a civil lawsuit for non-consensual pornography, your first step is to find an attorney who can handle your case. An attorney can, amongst other things, help determine:

• How to identify the perpetrator if the content was published anonymously or you are unsure of who published it.
• The best causes of action or claims to assert in your lawsuit.
• Where to bring the lawsuit.
• Whether you will be able to file the action under a pseudonym (e.g. “Jane Doe”) so you can protect your privacy during the process.
• If the perpetrator is known, you should first approach that person directly to try and resolve the matter before filing an action.

One situation in which civil lawsuits can be particularly helpful is where the victim cannot determine who has shared or published the content, such as when an intimate image or video was stolen from a victim’s private device or cloud storage. A lawsuit can be commenced against a “John Doe” – the unknown perpetrator – and through subpoenas and other discovery mechanisms, the victim can determine who has been posting the content. Once the actual person behind the spread of the content is identified, they can be substituted for the “John Doe” defendant and the case will proceed as an ordinary lawsuit.

When deciding what claims to pursue in a civil lawsuit, there are a number of options available to victims:

• Statutory claims under non-consensual pornography laws that provide for civil claims (availability dependent upon jurisdiction).
• Invasion of privacy claims.
• Intentional infliction of emotional distress.
• Defamation, if the content is published alongside false and defamatory statements or content.
• State-specific cyber-stalking or harassment laws.

There may be other specific causes of action that are available to you depending upon the facts of your case and what state law will apply.

What must be proved in order to recover under any of these claims will depend upon the law of the jurisdiction where the claim will be brought. However, generally, you should be able to show that the content at issue is video or photo of you in a state of undress and/or engaged in sexual activity; that the content was intended to be kept private; that you did not consent to the sharing or publication of the content to parties who have viewed the content, and; that the sharing or publication of the content (either at all or beyond the contemplated scope) caused you harm.

Two of the most important aspects of a civil claim related to non-consensual pornography, particularly for purposes of bringing a statutory claim, if available, or a common law invasion of privacy claim, are (1) that the content was published or shared was intended to maintained as private and was shared without the victim’s consent, and (2) that the victim sustained harm.

On the former point, the non-consensual nature of the publication or distribution can be self-evident or easily inferred from the facts and circumstances of the case. If a photo or video of you in a nude or sexually compromising position was taken without your knowledge and later distributed, this can sometimes be obvious from the context. However, it is always helpful to have evidence supporting these facts. If your intimate images or videos of you were distributed by an ex-partner, you may, upon learning of such violations of your privacy, be inclined to delete the original images or the communications with that partner to try and erase that person or the harmful content from your life. However, it is important to retain this evidence to protect your rights and support your position in court. Victims should be aware that malicious perpetrators may claim that the victim consented to the distribution or that they were unaware that the publication would be unwelcome. Any documentation that can rebut this assertion is valuable and can serve to rebut a claim that you had no objection to the perpetrator obtaining or sharing the content. If you have deleted relevant evidence, you may be able to recover it through legal process if you make your attorney aware of this fact.

As to the harm sustained by the victim, there are general two components: non-economic harm and economic harm. Non-economic harm would be things like mental or emotional distress, embarrassment, humiliation, and reputational harm. Economic harm would be losses or expenses caused by the perpetrator’s wrongful conduct, such as the loss of employment or employment opportunities as the result of the publication of the intimate content, the victim’s medical bills to treat any mental or physical symptoms caused by the publication or sharing of the content, or costs associated with remediating the invasion of your privacy. While most juries will be able to easily conceive of how the publication of intimate images can cause significant mental and emotional pain and suffering, victims should gather and retain all evidence that can help support these facts and, certainly, keep track of any money expended as a result of the perpetrator’s conduct, as well as evidence of, for example, adverse employment actions taken against the victim if the content is discovered.

Legal Outcomes and Remedies

If you decide to move forward with a civil lawsuit for claims arising from the publication of non-consensual pornography, there are a variety of remedies that you may be able to obtain, even if the case does not ultimately go to trial.

For example, initiating a lawsuit may be enough to induce the perpetrator to enter into a settlement agreement to resolve the matter. While public trials can certainly be difficult for victims, perpetrators like to avoid them as well – a trial will create a very public record of what the perpetrator has done and can have significant long term reputational implications, ironically causing them to face the social opprobrium to which they have subjected their victims. Thus, many defendants in revenge porn cases decide which to settle. Through settlement negotiations, your attorney can demand, amongst other things, monetary damages for the harm you have suffered, deletion of the “original” content at issue, identification of all locations and persons to whom the content was distributed, assignment of intellectual property rights to the content if the perpetrator originally took the video or pictures, a non-contact agreement that preclude the perpetrator from ever contacting the victim in the future, and an agreement that the perpetrator will not publish or post content about the victim online in the future.

If settlement is not an option you wish to pursue, or if the perpetrator does not agree to appropriate terms, you still can still achieve many of these goals and seek significant compensatory and punitive damages – the latter of which is intended to penalize the defendant for their conduct and result in significant financial awards to the victim. Compensatory damages will generally include economic and non-economic damages, providing for recovery of tangible losses as well as the very real, but intangible harms, such as emotional distress, embarrassment, humiliation, loss of enjoyment of life, and harm to privacy interests.

Punitive damages are typically only available if it can be established that the perpetrator has acted with malice, however, in cases of non-consensual pornography, especially revenge pornography, this is often not difficult to establish. While punitive damages are intended to punish the perpetrator and deter others from engaging in the same conduct in the future, these damages are recovered by the victim themselves.

Courts can also provide injunctive relief to victims that instruct relevant websites or search engines (like Google) to remove the specific content at issue or provide for removal of that content should it be published again in the future. Injunctions can also prohibit further dissemination of the harmful content by the defendant.

Ultimately, what relief is sought and the decision whether to settle or proceed to trial on a claim is a highly personal matter. Victims pursuing civil claims arising from non-consensual pornography should frequently discuss their goals and concerns with their attorney throughout the process to adjust for any changes and ensure that the victim remains comfortable with the approach taken.

Conclusion

The misuse of intimate images has become an alarming issue. When someone posts nude photos or videos of you in a sexually compromising situation online and without your consent, it’s a gross violation of your privacy and can have devastating emotional, interpersonal, and professional consequences. If you find yourself in this situation, you should act quickly to address the situation and consulting with an experienced attorney will put you in a good position to understand your options – both legal and non-legal.