Why New York’s First ‘Revenge Porn’ Case Ended Terribly for the Victim

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The law has just not caught up to technology: A Manhattan judge ruled this week that a man who shared naked photos of his girlfriend on Twitter — and sent them to her sister and her boss via email — did not technically do anything illegal. "This case appears to the first in which a New York court has considered criminal charges stemming from what has come to be known as 'revenge porn,'" wrote Criminal Court Judge Steven Statsinger in his decision. "The Court concludes that defendant's conduct, while reprehensible, does not violate any of the criminal statutes under which he is charged."

The Daily News has a breakdown, touching on each of the three misdemeanor charges faced by 29-year-old Ian Barber — aggravated harassment, dissemination of unlawful surveillance, and public display of offensive sexual material:

Harassment entails sending communications to the victim, which Barber didn't do; unlawful surveillance requires that the images be obtained illegally, which wasn't alleged; and nudity alone does not equal offensive sexual material, a count that also requires public display, which doesn't include a subscription service like Twitter, the judge found.

While the law says "public display" would include "any window, showcase, newsstand, display rack, wall, door, billboard, display board, viewing screen, moving picture screen, marquee or similar place, in such manner that the display is easily visible from or in any: public street, sidewalk or thoroughfare; transportation facility," Twitter doesn't count because you must "follow" someone to be likely to encounter their messages, according to the decision, which can be read in full here:

The terms of the statute clearly do not encompass either posting an image on Twitter - a subscriber-based social networking service - or sending images to a small number of private individuals, who might not even look at the email or open the attachments. Both of these are private acts.

As for the harassment:

In this case, however, the Information contains no factual allegation supporting the inference that the defendant had any communication at all with Ms. Batch. It does not even allege that she received a Tweet from him containing the pictures, only that she saw that defendant had posted them on his Twitter account and saw that he had emailed them to her employer and sister.

And yet, as the court states in a footnote, revenge porn is on the rise: "This phenomenon has become common enough to have its own Wikipedia page, which defines the conduct as 'sexually explicit media that is publicly shared online without the consent of the pictured individual.' That is precisely what is alleged in this case."

Only two states, New Jersey and California, currently have laws directly addressing revenge porn, an issue covered in-depth by Maureen O'Connor at the Cut last year. "The only way that we're going to get real change is if there's a serious criminal statute on the books," said a legal expert working with the Cyber Civil Rights Initiative, which grew out of the group End Revenge Porn. This case shows there's a lot of work left to be done.