Several members of the University of Central Florida chapter of the Delta Sigma Phi fraternity were recently sued, along with the fraternity itself, by a woman claiming that the fraternity operated a secret Facebook group where members uploaded images and video of private sexual encounters for other fraternity members to see. The case is Kathryn Novak v. Brandon Simpson, et al., Case No. 6:18-cv-00922-RBD-TBS (M.D. Fla. June 13, 2018).

The Plaintiff claims that she had a sexual relationship with defendant Brandon Simpson from October 2017 to February 2018 during which time Simpson recorded sexual encounters with her. Plaintiff claims that Simpson distributed video of the couple having sex to at least five Delta Sigma Phi fraternity members who then shared the video with the rest of the fraternity house.

The frat allegedly operated a secret Facebook group called the “Dog Pound” where fraternity brothers “routinely posted electronic video and images of their sexual ‘conquests’” and that the page was then used to disseminate nude images and videos of young women. The women involved allegedly did not consent to the distribution of the material. Plaintiff is asserting claims for invasion of privacy, intentional and negligent infliction of emotional distress, and a claim under Florida’s revenge porn statute.

Like Florida, California has a revenge porn statute. In 2013, the California legislature added “revenge porn” as a crime under California Penal Code § 647(j)(4). The statute makes it a misdemeanor offense to intentionally distribute images of another identifiable person depicted in a sexual act “under circumstances in which the persons agree or understand that the image shall remain private.”

California also recognizes a civil revenge porn claim under Civil Code § 1708.85, which creates a private cause of action against persons who intentionally distribute private images depicting an intimate body part of another.

Both of these statutes apply to the distribution of consensually-taken images. For example, the circumstance presented under § 647(j)(4)(A) oftentimes is when a victim consents to the picture taking during a consensual sexual relationship, and the victim and victim’s partner agree not to distribute the image, but the image is distributed after the relationship is ended. For this reason, the statutes have never been used to impose liability against media publishers because it has been impossible to show that publishers had an agreement with the subject that the images were to remain private.

Furthermore, publishers who lawfully obtain information, even if they know or have reason to know that the information was unlawfully obtained by the source, cannot be held liable for publishing newsworthy stories about the material. Bartnicki v. Vopper, 532 U.S. 514, 535 (2001). Consistent therewith, California’s civil revenge porn statute expressly recognizes that “[t]here shall be no liability on the part of the person distributing [sexually explicit materials] [where] … [t]he distributed material constitutes a matter of public concern.” Cal. Civ. Code § 1708.85(c)(4).

Overall, despite being at the forefront of codifying revenge porn laws, analysts have noted that California’s statutes could be improved. In particular, both statutes require a showing that the parties involved agreed or expected that the images would remain private, which can be difficult to establish when the persons involved (usually former partners) consented to recording the images but did not explicitly agree to keep them private. Accordingly, revenge porn claims are typically asserted as claims for invasion of privacy, misappropriation of likeness, infliction of emotional distress, and copyright infringement.