We have all seen and heard about how an innocent reply to a request to “Send Nudes” turns into humiliation when those pictures end up blasted out on Facebook, Instagram, or other social media platforms by a spurned ex. Revenge Porn causes embarrassment in the public eye, but many do not realize this humiliation is just the tip of the far reaching legal implications these acts can have on both the victim and the publisher.
From the posting party’s perspective, many do not think that throwing up a naked picture of their ex on a Facebook group could ever get them in any real trouble. It’s a closed group right? And you can’t see their face, so what’s the big deal? We’re just in college and they deserves it for cheating on me . . .
Currently, 34 states have laws criminalizing the posting of nude pictures of others without their consent. In Texas, Penal Code 21.16 punishes the “Unlawful Disclosure or Promotion of Intimate Visual Material” as a class A misdemeanor punishable by up to 2 years in jail and a $4,000 fine1. A person commits an offense if he or she posts an intimate picture of the victim that was originally sent with the expectation that it would remain private. Routinely, people send nude pics of a neckline and down, which leads to the question: if you can’t identify the person, then it should not matter, right? Wrong. While the law does require that the victim be identifiable in the picture, it does allow the identification to occur by some other source of information. For example, if a third party’s comment in the thread of the picture identifies the victim, or a witness can point out some other aspect of the picture as a means to identify the person (i.e. the background of the picture is the victim’s bedroom, or there is a unique body marking on the victim), then the victim IS independently identifiable. If this independent identification can occur, then the post becomes criminally punishable.
The criminal ramifications do not stop at the state level. If the victim is under the age of 18, there could be possible Federal Child Pornography implications leading to jail sentences sometimes in the 75 to 100 years range. Moreover, Congress is starting to pay more attention to this on a national level. U.S. House of Representative Jackie Spier (D-California) brought legislation to the table in July of 2016 to federally criminalize Revenge Porn and to equalize the standards and punishments across the country.
On top of the criminal consequences of Revenge Porn, recent case law developments highlight the trend for publisher’s conduct to result in sizeable damage awards for the mental anguish suffered by the victim at the helm of the publisher’s extreme acts. In the 2016 case of Patel v. Hussain, the 14th District Court of Appeals in Houston upheld a judgment of $345,000 in favor of a victim of Revenge Porn at the expense of her ex-boyfriend2. In Patel, the victim broke up with her ex-boyfriend who then went in a downward spiral of incessant phone calls, text messages, and e-mails3. When she did not return the admiration, or respond to his threats, he resorted to extreme measures – publishing on social media and YouTube naked pictures and videos of a skype conversation where the victim undressed herself and performed sexual acts4. Eventually, the victim sued the ex-boyfriend for different forms of invasion of privacy, intentional infliction of emotional distress (IIED), and defamation5. She won on all claims at trial6. On appeal Houston’s 14th District Court found that the ex-boyfriend’s actions did not rise to the level of IIED or defamation, but the evidence confirmed that he violated her privacy and justified the award of mental anguish and exemplary (punitive) damages on her other three claims.7
The ‘mental anguish’ finding in this case is significant because it provides an outline of the injuries victims in the future need to prove to justify a jury finding of mental anguish. For an appellate court to uphold a jury verdict on mental anguish damages the victim must prove that the poster caused “a substantial disruption in the daily routine of the victim . . . or a high degree of mental pain and distress.” 8In most cases, this type of ‘disruption’ is extremely hard to prove. Here, the victim put on evidence that after the Revenge Porn surfaced, she became afraid to go out with friends, began staying inside due to embarrassment, drastically cut her social group down into only a few friends, and her friends testified that she had “changed significantly.”9 The Houston court decided these facts rose to a level of a substantial disruption and a high degree of mental pain enough to uphold the finding of mental anguish.10Adding to the lore of social media: the Houston Court held that because the Ex posted the pictures on social media, the jury could conclude that these images (and the pain associated with them) will cause future mental anguish as the pictures could be distributed elsewhere and it would be near impossible to find and delete them completely.11 This significantly increased the victim’s dollar amount because this fact allowed the jury to award money not only for the past injuries she suffered, but also for future the future suffering.12
The court’s finding on mental anguish is also huge because this sets the standard for future victims: if the Revenge Porn causes you to change your daily routine, your friends notice a stark difference in your personality, you can testify that you suffered embarrassment, humiliation, and constant anxiety from the Revenge Porn, and the pictures were posted on social media . . . the court will uphold your past and future mental anguish damages. Perhaps even more important is that if the court grants mental anguish, then the victim may recover exemplary damages which can increase the amount of money awarded by almost triple in some cases.13
Developments Since Patel
During Patel’s journey through the court system, the Texas Legislature enacted a new law, Tex. Civ. Prac. & Rem. Code § 98B.001 et. al, that tracks Tex. Penal Code § 21.16 (the criminal law against Revenge Porn)14. Section 98B provides that victims of Revenge Porn can recover a $1,000 penalty for each image published on top of monetary damages for actual injuries, mental anguish suffering, attorneys’ fees, costs of court, and punitive damages.15 Section 98B expands liability as well because violators are not only liable if they directly publish the images, they are liable for any third party’s publication caused by their distribution of the images or for receiving an intimate image and then re-publishing it to a public forum16. This means if a buddy shares his ex-girlfriend’s picture to you through a DM, then you re-share . . . you are on the hook. Also, if you send your ex’s picture to your buddy and then he sends it out to the world on the internet, you are also looking at possible penalties.
The Legislature also expanded this law’s coverage to contributors all over the country by allowing Texas courts to reach out and punish people in other states so long as the defendant or victim live in Texas, the server hosting the pictures is located in Texas, or the images are available for viewing in Texas17. This means virtually anybody who publishes these images can be hauled into court in Texas for their conduct.
This broad reach as well as the express sanction of mental anguish and exemplary damages is highly unusual in Texas – most causes of action created by the legislature specifically exclude these types of damages and severely limit the geographic reach of Texas Courts. The wording of this law shows the Legislature’s message: Revenge Porn will not be tolerated and will be punished severely.
Lemme take a selfie – what does this have to do with me?
Nudes and Revenge Porn have become a common issue in our social media society. The best way to prevent the problem is to not circulate your picture in the first place. However, if someone (an ex, their friend, a website you come across) contains a picture of you revealing poses, parts, and privates you never intended to get out there – then you have rights. On the other hand, if you are the receiver of these DMs and snap chats, you better be careful what you do with that kryptonite. Any sharing, even amongst your friends, could lead to criminal as well as civil penalties you never expected when you simply made the traditional and championed statement, “Send Nudes.”
- Tex. Pen. Code § 21.16
- Patel v. Hussain, 485 S.W.3d 153 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (Affirming the jury findings of Defendant’s violation of Plaintiff’s claims for intrusion of seclusion, public disclosure of private facts, mental anguish damages, and exemplary damages while reversing and vacating the jury finding of intentional infliction of emotional distress and defamation).
- Id. at 158.
- Id. at 171.
- Id. at 171.
- Id. at 171, 184.
- Id. at 178 (quoting Hancock v. Variyam, 400 S.W.3d 59, 68 (Tex. 2013).
- Id. at 179.
- Id. at 179-80.
- Id. at 182.
- See Tex. Civ. Prac. & Rem. Code § 41 et. al.
- Tex. Civ. Prac. & Rem. Code § 98B.002-.003
- Id. 98B.002(b).