- The Washington Times - Sunday, August 3, 2014

A Houston woman is suing social media giant Facebook after a compromising picture of her was posted by her ex-boyfriend on his Facebook page, opening a new legal front in the battle to aid victims of “revenge porn.”

In her suit filed last month, Meryem Ali alleges that “ex-friend” Adeel Shah Khan started an “imposter Facebook site” that featured Photoshopped photos of Ms. Ali’s head attached to “false, phony, naked body shots,” and one photo where she is “in a graphic, pornographic-like photo purporting to be in the middle of a sexual act.”

Ms. Ali is seeking “full justice” against Facebook and Mr. Khan for the “significant trauma, extreme humiliation, extreme embarrassment, severe emotional disturbances and severe mental and physical suffering.” She is suing for $123 million — or 10 cents for every one of Facebook’s 1.23 billion users.

Facebook has declined to comment on the lawsuit, but the case has focused renewed attention on the efforts to combat so-called “revenge porn” and on the struggles the legal system has faced in obtaining justice for victims of sexual abuse and exploitation in the age of the Internet.

Revenge porn, also known as “cyber rape,” is the distribution of nude or sexually explicit content without the consent of the individual pictured. Typically, a couple will share sexually suggestive pictures or videos as a consensual act, but when the relationship ends, an angered ex will post the material online out of spite. The content is usually attached with personal information about the individual: phone number, links to social media profiles, address and employment.

Several websites even sprang up to collect and disseminate revenge porn.

Britain, Japan and dozens of U.S. state legislatures are now looking at laws and legal arguments to halt revenge porn, and the Houston lawsuit is believed to be the first to go after the social media sites that can host revenge porn postings.

According to the petition filed July 25, Ms. Ali wasn’t aware of the photos until family and friends were invited to connect to the phony site in December 2013. Following months of requests to connect to the fake Ms. Ali’s Facebook page, the bogus page was removed after the Houston Police Department subpoenaed Facebook’s records. Ms. Ali alleges Facebook “failed to live up to its worldwide marketing and advertising promise” to take down fake sites in a timely fashion.

Her petition contends that Ms. Ali has endured “significant trauma, extreme humiliation, extreme embarrassment, severe emotional disturbances, and severe mental and physical suffering.”

Through this lawsuit Ms. Ali seeks to “expose the frailties and failures of the falsely advertised and false-promoted privacy mechanisms” of Facebook.

Facebook’s upper management knows that its operations regularly allow for the compromising in significant way of the reasonable and expected privacy rights of its subscribers,” the suit argues. She went to court to make the company “stand up, take notice and pay attention to the serious privacy violations concerns involved in revenge porn situations.”

Legal hurdles

But Georgetown Law Professor Rebecca Tushnet said Ms. Ali’s arguments likely will not hold up in court unless the plaintiff can demonstrate a breach of contract under the federal Communications Decency Act (CDA).

“She can’t win those claims,” she said, noting the act legally protects websites from liability for user-generated content.

Richard B. Newman, an Internet law attorney at Hinch Newman LLP who focuses on online marketing, regulatory defense and digital media law, said one of the hurdles in the case will be proving intentional infliction of emotional distress — IIED, in legal terms.

“One of Ms. Ali’s challenges will likely be establishing the elements of the IIED claim,” he said in an email. “The act must generally be found to [be] outrageous or extreme and intended to cause severe emotional distress. The singular hurdle here may likely be proving that she, in fact, suffered severe emotional distress.”

Under the CDA, he added, “An injunction can force uploaders to remove images and pay monetary damages, [but] subsequent postings often remain untouched because of the CDA.”

And that is something that raises the legal bar for revenge porn cases because the picture or video will always be out there.

“Most ‘revenge porn’ civil suits are only partially beneficial because the images do not just disappear,” he said. “They are cached and reposted.”

The case comes after the Supreme Court this spring threw out a multimillion-dollar award given to a women whose uncle had circulated pornographic images of her as a girl online. A lower court had ruled that one man who had viewed two of the images online could be forced to pay the entire damage award, but the high court reversed the decision.

The case pointed up another anomaly in the quest to write enforceable laws on pornography and the Internet: The woman’s attorneys argued unsuccessfully that it was impractical for the young victim to collect her damage award from the tens of thousands of viewers who had downloaded her image online.

The fate of lawsuits such as Ms. Ali’s could affect the anti-revenge porn bills states are trying to write and implement, analysts say.

The National Conference of State Legislatures (NCSL) reports that revenge porn legislation has been enacted in Arizona, Colorado, Georgia, Hawaii, Idaho, Maryland, Pennsylvania, Utah, Virginia and Wisconsin.

Legislation for revenge porn has been introduced or is pending in 27 states, according to the NCSL. But ACLU staff attorney Lee Rowland said lawmakers need to be cautious.

“Nobody in their right mind is in favor of revenge porn,” she said. “The problem is legislative language should be precise.”

Because “we’re inherently talking about human behavior,” she added, there exists a “complexity” because “there is no real road map for criminalizing that behavior.”

For laws to be effective and not limit constitutional freedoms, there needs to be intent of harm or [an] invasion of privacy requirement in the law, Ms. Rowland said.

Ms. Tushnet, who specializes in copyright, intellectual property and constitutional law, said legislators need to “write with sensitivity.”

“The core behavior is already count(ed) as an invasion of privacy,” she said. “Nothing has changed but our mechanisms of harming each other.”

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