Civil suit against GoDaddy: Revenge porn should be criminal

The civil lawsuit is going to fail. The actions of those sick ex-boyfriends and ex-husbands who posted the content should be criminal.  Photo: GoDaddy

WASHINGTON, D.C., January 26, 2013 ― Seventeen women in Texas have sued a website called Texxxan.com, hosting giant GoDaddy, and unidentified defendants in response to nude images that were posted, ostensibly by their revenge-seeking ex-boyfriends and ex-husbands. 

The civil lawsuit alleges invasion of privacy. Certainly. To say the least.

Perhaps I am simply naïve. I was beyond shocked to learn of this sick and juvenile behavior. It should be criminal. Revenge sites have been around for quite a while. This seems to be the adult version of the middle school “slam books” that were (are?) passed around, that contained nasty comments about classmates. 

Hunter Moore is a well-known purveyor of porn. He took down his website that did much of the same thing as Texxxan.com. Moore’s site, IsAnybodyUp, featured nude photographs submitted without the consent of the subjects, and included real names and hometown identification. He allegedly made $10,000 per month from ad revenue.

In an interview with the New York Observer Moore said: “In a perfect world there would be no bullying and there would be no people like me and there would be no sites like mine … but we don’t live in a perfect world.”

Break-ups with your boyfriend or girlfriend or spouse used to subject you to being trash-talked to your circle of acquaintances by your ex. Maybe the ex would even talk to family about you. Now, the trash can be instantly communicated to the world. The internet takes vindictiveness and exposure of very personal information to an unthinkable level.

The repercussions can be devastating. A woman’s images and her private information as exposed could affect her social status or employment. Aside from repercussions from the “outside world,” exposure can and certainly does create mental anguish, emotional distress, embarrassment, depression and shock. There may be temporary and even long-term psychological harm.

Posting nude photographs, identifying and other private information without consent should be criminal. It should be a federal crime. 

State police tell us it is federal crime, if it is a crime at all, because the internet crosses state lines. The FBI says it is a civil matter. 

A new law should be created or the legal definition of battery should be enlarged. 

As defined everywhere, battery involves a physical touching of your body. It should be expanded to include “touching” or harming you psychologically. We recognize psychological harm can be much more devastating and longer lasting than physical harm. 

The following elements currently must be proven to establish a case for battery: (1) an act by a defendant; (2) an intent to cause harmful or offensive contact on the part of the defendant; and (3) harmful or offensive contact.

If battery’s definition cannot be changed, a new criminal law should be created.

The women in this case are seeking an injunction to have the website taken down, and unspecified monetary damages from the defendants.

They will not prevail with any of their claims. They have not named the correct defendants. They should be suing their ex-sleaze-balls for money damages, both compensatory and punitive. 

The women sued the website Texxxan.com, meaning in effect they sued the owner(s) of that site. Unfortunately, our country’s freedom of speech laws will allow the sleaze-ball owner(s) to keep the site. Negative publicity may well end the site’s existence.

The women sued “unidentified defendants that include the persons and/or entities hosting the site.” They also sued “all subscribing members” and GoDaddy. 

All of these defendants will prevail. The claims against the subscribers and GoDaddy are governed by Section 230 of the Communications Decency Act of 1996, which shields internet providers and users, in effect giving them immunity, from civil liability for providing or using an “interactive computer service.”

The immunity provided by this law involves a three-prong test. Users and providers, as defendants, must prove each of the three things to have the immunity:

* The defendant must be a “provider or user” of an “interactive computer service.”

* The cause of action asserted by the plaintiff must “treat” the defendant “as the publisher or speaker” of the harmful information at issue.

* The information must be “provided by another information content provider,” i.e., the defendant must not be the “information content provider” of the harmful information at issue.

The attorney for the plaintiffs indicates that the immunity of the law does not apply in this case because there was knowledge that the content was posted without the consent of the women. This argument is not even legally close to being successful. Even if it can be shown that GoDaddy knew what it was hosting or that it could have taken the site down, GoDaddy will not be responsible here in any way.

The law’s immunity provision says nothing about consent, and there is no court that will expand the law to include such an inquiry. Imagine the number of claims that such an action would create.

Talk about opening the floodgates …

Since the law was passed in 1996, dozens of lawsuits have been filed and none have found success in making host providers civilly responsible. The categories of claims against host providers include Defamation, False Information, Sexually Explicit Content including minors, Discriminatory Housing Ads, and Threats.

Again, the reason for the failure to succeed against the host-provider is simply that the provider did not create the content. The messenger is not responsible. Neither is the audience.

The process of discovery, if this suit ever progresses that far, could potentially reveal who pays for access to the site to view the postings. The theory the women have in suing these individuals is that their funds assist in maintaining the site, that the site is somehow illegal, and therefore the subscribers are civilly responsible. The theory is a very long stretch and has no chance of success given the Section 230 law.

Having now trashed these women’s claims in the suit they filed, I return to my original thought. The actions of those sick ex-boyfriends and ex-husbands who posted the content should be criminal. The civil lawsuit should have named them as defendants, and if it did, the women would prevail against them. In the meantime, once again, our Federal elected officials and those in every state should take up this matter and create a criminal law that subjects those that post these images without consent to jail time, public lashing, salt being placed in the wounds thereafter, and permanent monikers similar to those of sex offenders.

 

Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980.  He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website. He is also available to speak to your group on numerous legal topics.  Paul is the featured legal analyst on the Washington Times Radio, in Washington, D.C., on the Andy Parks show, the featured legal analyst for America’s Radio News Network, heard in 165 markets nationwide, and he is a columnist on the Washington Times Communities.

His book The 8 Critical Things Your Auto Accident Attorney Won’t Tell You is free to Maryland and Virginia residents and can be obtained by ordering it on his website; others can obtain it on Amazon.


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Paul Samakow

Attorney Paul Samakow brings his legal expertise to the headlines from life and real-life experience to The Washington Times Communties. A native Washingtonian, Samakow has been a Plaintiff’s trial lawyer since 1980, with offices in Maryland and Virginia. 

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