On my list of things I never thought I'd be talking about there has to be an entry for “ex-lovers posting intimate photos on ‘revenge’ Web sites.” But the life of a media lawyer is filled with odd twists. And so I found myself earlier this week on WLW radio discussing the subject with Bill Cunningham. Hit “download” to listen to it. And then I saw this California criminal complaint.
The complaint alleges that Kevin Bollaert created a Web site called “ugotposted.com”. Between December 2012 and September 2013, Bollaert “with the assistance of known and unknown conspirators” posted over 10,000 photographs of “nude and explicit images of individuals” who never consented to the postings.
Showing a warped, but aggressive entrepreneurial spirit, Bollaert then set up a Web site called changemyreputation.com. The business model for that enterprise was removing the photos for a price. Bollaert made over $10,000 from people who had no other way to get the photos removed.
California has passed legislation specifically targeted to revenge porn. But Bollaert’s actions took place before that law was enacted. So California had to be a little more creative here. Bollaert was charged with several count of identity theft – under a California statute that makes it illegal to “obtain personal identifying information . . . for an unlawful purpose.” He was also charged with several counts of extortion. In all there are 31 counts in the complaint. Not sure of the penalty, but if convicted Bollaert may be locked up for long time.
Of course, there is a bit of an “if” there. If third parties uploaded the images, it is possible that Section 230 of the Federal Communications Decency Act will protect Bollaert. That statute says that an operator of an interactive computer service is not the publisher of content supplied by third parties. While the CDA does not apply to federal crimes, there is no carve out for state crimes.
And the CDA may protect him on the extortion claim as well. The statute broadly protects service providers with respect to blocking or removing content from the site. The problem for Bollaert here is that the CDA refers to “action . . .taken in good faith.” I hate to be judgmental, but I can’t see using “good faith” and “Kevin Bollaert” in the same sentence.
We will see how this comes out. But it may not be as cut and dry as it first appears. Which makes it interesting.