Mudd Law Offices represents individuals whose privacy has been violated through the unauthorized publication of private photographs.
Mudd Law recently posted on the topic of “revenge porn.”
With smartphones, digital images, ease of technology, and the ubiquitous nature of the Internet comes the ever emerging dark side of reputational harm and invasions of privacy. Among the varied legal issues with which Mudd Law Offices has developed experience, the unauthorized publication of nude, naked, explicit, intimate or otherwise private photographs on the Internet stands out for many reasons. Foremost, the publication of such photos (often casually termed ‘pics’) invades an individual’s most private space – their bodies – and often amounts to a significant betrayal of trust.
When our firm receives inquiries from victims of photos being posted online, the first objective for the individual will most often be removal of the photos from the Internet. However, though removal must occur quickly, it will also be imperative to develop a sound strategy to preserve evidence, remove the content, and ensure the publication of the photos will not occur again. Our Internet attorneys will be able to provide a sound course of action.
Most of the time the subject of the photographs will know who posted them online. Other times, the person in the photos will not know who posted them on the Internet. Beyond this, many victims will actually be unaware that photos or video had been obtained of them. Each of these factors plays into developing a strategic response to the content online.
It will be essential for anyone who has had nude, intimate, explicit, or private video or photos posted online on the Internet to consult with an attorney who is well-versed in this type of law and knows how to protect the individual’s anonymity as well as preserve the relevant evidence.
Where the Poster is Unknown
Where the identity of the individual who posted the content is unknown, the most likely first course of action will involve sending letters to the sites on which the photographs have been posted. In doing so, the proper tone and language will be essential. Many sites will be protected by a provision in the Communications Decency Act, 47 U.S.C. § 230, that provides hosts of third party content with certain immunity. Although circumstances may exist where this immunity is diminished, an explicit threat to file suit against a website hosting third party content may actually backfire. Consequently, a letter must be sent with the proper, strategic balance of tone and content.
Additionally, where the identity of the poster is unknown, it may become necessary to file suit against the unknown anonymous “John Doe” party. However, in filing litigation in this circumstance, it will be essential to file suit in a manner that protects the victim plaintiff’s privacy. You should retain a lawyer who knows how to do so.
In filing litigation against the “John Doe,” the hope would be to obtain information identifying who posted the private or nude photos. However, this result cannot be guaranteed to occur. Nonetheless, litigation may be the only means to ensure that the content does not reappear on the same or different website.
After filing suit and following certain procedural protocol, discovery will be implemented in efforts to determine the identity of the individual posting the unauthorized photographs. Many issues come into play in seeking the identity of unknown individuals who posted content on the Internet.
At the same time, one can seek an order from the court seeking preservation and removal of the content.
Knowing the Poster
Where an individual knows the identity of the person posting the content, there exist several strategies to explore. To begin with, an attorney could send an immediate demand letter to remove the material. Depending on the individual at issue, this may or may not work. Often, the client would know best how a letter from an attorney would be received.
In other cases, you may want to file litigation promptly and seek an order compelling preservation of evidence – both in possession of the individual posting the material and the relevant websites. Every situation will demand a unique strategic response.
During resolution efforts with the individual who posted the content, there will also be steps to take to attempt to remove the content from the Internet. Taking the right approach often secures results better than taking the wrong approach.
Should a Criminal Complaint Be Filed
You can also file a police report. However, this often may exacerbate the situation where an effort to resolve the matter may more quickly secure the desired result. Nonetheless, a police report and/or charges may be necessary in certain circumstances. Many state ethics rules, however, preclude threatening such an approach for purposes of settling with the individual. Again, the right strategy must be developed for your circumstances.
You may also speak to an attorney about No Contact Orders, Cyberstalking, and other remedies.
When we do file suit civilly on behalf of our clients, any number of privacy, defamation, stalking, and other claims may be available.
Preliminary Recommendations
(1) Preserve evidence. This involves obtaining a screen capture or saving as a PDF evidence of the content online. Where you see a username or Internet Protocol (“IP”) address, be sure to preserve this information.
(2) Contact an attorney. As soon as you learn of private content on the Internet, you should retain counsel to help you with all aspects of the situation.
(3) Contact suspected poster. Although we recommend retaining an attorney before contacting the individual suspected of posting the content, sometimes this happens to be impractical or impossible. In such cases where you know who posted the content, you could contact the suspected poster and demand that the content be removed. You should not send them the link of the content. If they posted it, they know. If they did not, you do not want to distribute information to people.
(4) Contact an attorney. Even if the suspected poster removes the content, you should retain a lawyer to help negotiate a settlement to ensure the same event does not reoccur. So, as soon as reasonably practical, speak to an attorney to help you.
Mudd Law provides initial complimentary consultations for this type of situation. Simply call Mudd Law and mention you reviewed this post.
In October 2013, the ABA published a very good article on this subject.