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California weighs making 'revenge porn' illegal

(CNN) -- In the aftermath of a failed relationship, jilted lovers have been known to lash out by posting sexually explicit photos or videos of their exes online.

Called "revenge porn," or the less-salacious "cyber revenge," the trend has been around for years, spawning entire websites that profit off these images. But now, state laws could make this illegal.

This week, the California Legislature is debating a new bill that would make it a misdemeanor for people to distribute sexually explicit photos or videos they'd shot in order to cause others humiliation or distress. It has already passed the state Senate.

A similar bill was under consideration in Florida this year that would have made the act a felony, but it failed to muster the votes to become law. New Jersey is the only state that already has such a law on the books.

Advocate Holly Jacobs, a graduate student in Florida, began pushing for stronger laws after naked photos and videos of her were posted online that she had shared with an ex-boyfriend while they were together. The images went viral and were re-posted on hundreds of websites, along with identifying details such as her name, e-mail address and employer.

Jacobs suspects her ex was responsible, although she told CNN that he has denied any involvement. She spent years fighting to get the images removed from various websites.

A gray area

The reason it was so difficult is that these acts of vengeance frequently fall into a gray legal area.

In California, very few variations of revenge are already covered under state law. If a subject is under 18, such an act is covered by child pornography laws. It's already illegal to shoot a video or photograph secretly of someone without permission anywhere there's a reasonable expectation of privacy -- in a bedroom or a store dressing room, for example, but not in a public park or on the street.

However, these laws don't apply in most "revenge porn" situations, where the injured party gave permission to be photographed or videotaped during happier times.

There are cyberstalking statutes, but they require a pattern of behavior (multiple offenses) and implied threats that make the victim fear for his or her safety. Uploading a single nude photo to embarrass an ex wouldn't apply.

As a final recourse, the man or woman shown in an explicit video could pursue a civil case against their ex or the sites hosting the images, but those cases can be costly and difficult to win.

The California bill, Senate Bill 255, targets anyone who photographs or records a sexual image with consent and then "subsequently distributes the image taken, with the intent to cause serious emotional distress, and the other person suffers serious emotional distress."

Under the new law, distributing these types of videos and photos would become a misdemeanor, punishable by up to six months in jail or a $1,000 fine for first violation. A second offense could result in a year in jail and a $2,000 fine. The perpetrator would not become a registered sex offender.

"This is a very precisely drafted and narrowly drafted bill," said UCLA law professor Eugene Volokh.

Legal pitfalls

The California bill is so narrow, in fact, that it doesn't cover one of the more common revenge-porn situations: images originally shared through sexting. The law only applies when someone is the both the person who shoots the original image and the one who distributes it. If someone takes a photo of himself or herself, texts it to a girlfriend or boyfriend, and then the recipient later posts it, that act wouldn't be considered a crime under this legislation.

Critics such as the American Civil Liberties Union have also expressed concerns about the bill, arguing such a law could have a negative impact on free speech.

"It's possible in extremely unusual situations that this kind of speech might have serious value -- you can imagine a political context or a video that reveals something criminal," Volokh said.

There are other potential holes, such as when images are distributed for bragging rights or money instead of revenge.

"It does require intent to cause serious emotional distress," Volokh said of the bill. "In certain situations, the reason people distribute this material is for money."

Once an image is online it can spread quickly. The bitter ex could be charged with a crime, but getting websites to take down the image would still be a separate battle. The hope is that making distributing the images a crime will deter people from pursuing this type of revenge in the first place.

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