The near ubiquitous nature of Internet usage has forced judges and lawmakers alike to more clearly define the often-indistinct boundary between communication that is permissible and communication that is criminal, with the First Amendment right to freedom of expression serving as the constant backdrop to any proposed restrictions on speech. The emergence of revenge (i.e., involuntary) porn websites such as Texxxan.com further evidences the need for greater clarity in presently grey areas of communication law, so that the communicative avenues of the twenty-first century do not run afoul of our enduring conceptions of privacy and dignity. Sites catering to purveyors of revenge porn garnered widespread attention as a result of the 2013 case GoDaddy.com, LLC v. Toups, in which Hollie Toups and 22 other female plaintiffs, all of whom discovered nude photos of themselves displayed on Texxxan.com without their consent, filed suit against massive domain registrar and web hosting company GoDaddy Inc., citing invasion of privacy and the intentional infliction of emotional distress. Ultimately, the Beaumont Court of Appeals held that, since GoDaddy.com itself did not technically publish the nude photos in question, the site was exempt from the plaintiffs’ tort claims.
Why is it that Hollie Toups and her fellow plaintiffs chose to direct the brunt of their lawsuit at GoDaddy.com, the web host, rather than solely naming Texxxan.com, the actual website on which their photos were featured? One possible motivating factor could be related to financial means – GoDaddy.com undoubtedly has much deeper pockets than Texxxan.com does, allowing Toups et al. to feasibly seek a much larger settlement. Additionally, Texxxan.com is far from the only site of its kind, meaning a suit against GoDaddy.com likely stood a greater chance of effecting broader change, achievable without the hassle and expenses inherent to bringing suits against each individual revenge porn website. However, section 230 of the 1996 Communications Decency Act poses a significant obstacle to proving liability on the part of either GoDaddy.com or Texxxan.com. Since section 230 of the Act broadly protects ISPs from assuming legal culpability for the user-generated content they host, GoDaddy.com and Texxxan.com both receive considerable leeway in regards to the content posted on their sites by non-owner users. That being said, various legal precedents have more definitively established the circumstances under which websites may be held accountable for the objectionable postings of their users. In Sarah Jones v. Dirty World Entertainment Recordings, LLC, for instance, the deciding judge ruled that if a website is deemed to “specifically encourage development of what is offensive about the content,” then the protections granted by section 230 do not apply to that site. Given that the basic premise of Texxxan.com’s business model is the nonconsensual sharing of nude photos, it can hardly be sensibly argued that the site does not actively seek to encourage this behavior. Still, the question remains of whether domain registrars and web hosting companies should be held liable for that which is posted on each of the many websites they host. Once again taking into account the fact that Texxxan.com and comparable sites primarily function as platforms for the dissemination of revenge porn specifically rather than user-generated content more broadly, it seems reasonable that GoDaddy.com and other domain registrars be held culpable for the offensive (yet entirely predictable) material posted on these sites, whose very existence they helped to facilitate.
Invoking an alternative measure to host liability, California passed a law in 2013 attaching the penalty of six months jail time and a $1000 fine to the act of distributing sexual images of an ex-partner or lover. While such a law undoubtedly represents a step in the right direction, in practice, it nonetheless provides for a number of concerning loopholes, the most notable of which being that in order for the penalties of the law to apply, the individual accused of spreading the sexual images online must also be the photographer of said images, a provision that is shocking in its failure to adequately account for the realities of revenge porn. Alternatively, should a victim wish to claim copyright infringement and issue a Digital Millennium Copyright Act (DMCA) takedown notice, she – rarely ever are such victims NOT female – must have taken the photo herself, which also excludes a sizeable portion of revenge porn cases. Moreover, in order to avoid complying with DMCA notices, some websites dedicated to revenge porn have claimed that the foreign location of their servers renders them exempt from U.S. law, while others have simply resorted to hiding their servers.
At the end of the day, any sustained, uniform judicial intervention against the likes of GoDaddy.com or Texxxan.com requires accompanying legislation at the federal level, providing a national framework for the handling of cases involving electronic privacy. As it currently stands, the various legal mechanisms available for compelling the removal of nude photos from revenge porn sites are incoherent, lacking any salient, unified justification, often designed to achieve disparate ends, and frequently unsuccessful in actually bringing about the removal of the photo(s) in question. Given that the revenge porn industry is effectively driven by the desire of embittered men to usurp a woman’s agency in determining the extent to which images of her own body are distributed, it seems exceedingly logical that involuntary pornography join the ranks of other speech not granted protection under the First Amendment. Intuitively, we by and large understand that nude photos come with an implied confidentiality notice attached, though evidently not everyone chooses to abide by this common sense social contract. Thus, the law must legitimize what basic decency tells us to be true.