Because The Internets Need A New Takedown Regime

An academic has called for an amendment to a major US law to help victims of revenge porn: the online posting of nude or sexually explicit photographs or videos of a former lover without his or her consent.

Memo to Taylor & Francis Group:  A third-year law student is not an academic.  Generally, there are few voices less worthy of note than a law student’s.  That said, University of Missouri Law School’s Allison Tungate’s note, “Bare necessities: the argument for a ‘revenge porn’ exception in Section 230 immunity” is better than most of what’s been promoted as a cure up to now.

‘Revenge porn’ is the online posting of nude or sexually explicit photographs or videos of a former lover without his or her consent. Despite the malicious intent behind revenge porn, victims are provided with little to no relief due to Section 230 of the Federal Communications Decency Act, also known as the ‘Good Samaritan’ provisions. Section 230 unambiguously provides blanket immunity for website operators and Internet service providers that feature user-generated content, including revenge porn.

Granted, little effort is put into defining, and refining, the superficial definitions used in the article, but that’s not unusual for law students. They tend to take a lot for granted, like “we know it when we see it.”

The proposed exception should be limited only to pornographic or sexually suggestive material defined as ‘revenge porn.’113 Such content is easily recognizable and affects a narrow class of websites – specifically websites such as that encourage the posting of revenge porn material. By narrowly affecting a certain class of websites, the exception would not be over-inclusive – it would be directed exclusively toward the antagonists and proprietors of revenge porn, thus fortifying the purpose of the exception.

Easily recognizable isn’t a particularly good description of “a narrow class of websites,” but that’s nuts and bolts.  Very difficult nuts and bolts, that often eludes those who take for granted that Potter Stewart can’t be all bad.

‘Good laws lead to the making of better ones; bad ones bring about worse.’ Jean Jacques Rousseau (1712–1778). Without a doubt, the CDA is a good law in that it allows for the ‘continued development of the Internet’ and preserves the ‘vibrant and competitive free market’ of ideas on the Web.

With this lead-in, Tungate proposes an exception to Article 230, suggesting that she didn’t understand Rousseau at all.

As a consequence to the major obstacles revenge porn victims face in seeking justice, I propose that Congress create an exception to Section 230 of the CDA. First, the exception would include a definition of revenge porn: the online posting of nude or sexual photographs of an individual without his or her consent. This definition would include content obtained through hacking or unbeknownst to the owner. Accordingly, website service providers, whose sites consist mainly of nude and sexually suggestive photographs and videos, would be required to take down defamatory photographs and videos within a 14-day period if they are put on notice that such photographs or videos were distributed to the website without the permission of those featured in the photographs or videos. My proposed exception would not require ISPs to self-regulate the content posted on the website, thus eliminating any sort of excuse that it would be unfeasible for the ISPs to remove all defamatory content posted because there is not enough time, resources, etc.

Rather, each website would be required to provide a link where takedown requests of unauthorized content could be submitted and reviewed within 14 days. If the ISP refused to comply, judicial proceedings could potentially take years to resolve, thereby exacerbating the effect such content has on the lives of victims. To curb such detrimental effects caused by time and provide quick relief, the exception would provide for a court-ordered temporary removal until the court has come to a resolution regarding the merits of whether the alleged offending website had a legitimate justification for refusing to take down the content. If the court decides such justification for removal is baseless or erroneous, the temporary removal of the content would become an order to permanently remove the offending post.

What makes this interesting is that Tungate’s proposal puts the initial burden on the person seeking a takedown, which then shifts to the website to decide whether to risk refusal.  She would eliminate the “onerous burden” of using legal process to first sue for relief, despite the fact that legal process is the way everyone else is required to vindicate their rights.

This process will certainly have a chilling effect on free speech, as rational players will take down challenged images rather than risk liability for their refusal, but if far more work is put into defining the offending websites so that they can be directed to those engaged in the business of revenge porn, the “offenders” that are held up as the examples by criminalization advocates while they seek laws that will serve to convict dopey teens instead, the concerns shift from free speech to commercial speech, which enjoy lesser protection.  Nobody is going to lose sleep wondering where Hunter Moore’s next meal is coming from.

I suspect that the criminalization advocates will hate this idea, if it doesn’t come hand-in-hand with criminalizing the evil men people who post images on the internets.  For all the talk about the grievous harm suffered, vitiating the harm seems to take a distant backseat to punishing those who cause it.

And it will no doubt make them very sad that this proposal will not eliminate every hated image, or condemn every evil man person to revenge porn purgatory.  But the view that no person should escape their wrath, such that the unfortunate innocents who will be swept up in their war are mere collateral damage necessarily suffered to achieve the Nirvana of no woman’s person’s feelings hurt, is contrary to our basic concept, embodied in Blackstone’s Ratio, that we do not convict the innocent to make sure that no guilty person gets away.

Not that an exception to Article 230 of the CDA is anything to be taken lightly.  It could well be a slippery slope, particularly with initiatives that seek to silence “hurtful speech,”  perhaps the most insidiously destructive idea put forth by the fragile teacups of the web.  But with the caveat that such an exception be subject to strict constitutional scrutiny, it offers a far better solution than creating crimes.

Or does this open the door to a takedown regime for every new butthurt that the internets create?

3 comments on “Because The Internets Need A New Takedown Regime

  1. John Burgess

    How about if such take-down demands were required to be accompanied by, say, a $50K bond to cover the legal costs of the ISPs if the take-down ends up being rejected? This would certainly dissuade frivolous claims to some extent.

  2. anon-law prof

    I haven’t seen the whole article yet, but two things stick out as problematic. I wonder if there’s a penalty for false take down request, similar to the DMCA regime? And this kind of statement strikes me as something easy to say but hard to live with: revenge porn (what is targeted) is “the online posting of nude or sexual photographs of an individual without his or her consent.” Seems simple enough, but it assumes that each photo clear has attached to it a “consent” or “non-consent” tag. The internet isn’t that simple. Think of how many things you can find and then share with a couple of clicks past a google search. Who knows the conditions of manufacture of those bits of pictorial content you find online? That’s surely different than what the revenge porn laws say they want to outlaw: the sharing of pictures you clearly know you don’t have consent to share.

    Yet all of these laws would sweep in all of the speech where sharing exists in a consent-gray area in the present of a complaint (regardless of it being legitimate or illegitimate). That’s the set of consequences that I find under-discussed when these simple laws are proposed to shut down this evil.

    1. SHG Post author

      There remain plenty of nuts and bolts issues to be resolved in this idea, ranging from vague definitions to procedural hurdles to specifics of a takedown regime, including, as you note, penalty for false claims. Indeed, what’s to stop some group from issuing blanket takedown notices even though they have no connection with images? Fear of perjury prosecution? When is the last time that happened, especially to a sympathetic party?

      Then again, there are myriad problems with the criminal laws being promoted, which stands to likely have them declared unconstitutional, so these questions persist with all proposals. At least this one comes from a 3L and not a professor, which better explains the need for additional work.

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