The Virginia Business Litigation Blog
Most laws were written before people started texting naked pictures of each other on their phones. No one had heard of so-called revenge porn until around 2010, when the controversial website “Is Anyone Up?” launched, allowing users to upload sexually explicit images of former romantic partners. That site ceased operation just two years after it started, but revenge porn is now more widespread than ever. So widespread, in fact, that several states (Virginia included) have decided that existing laws against copyright infringement, intentional infliction of emotional distress, and bullying were not offering victims sufficient protection. In Virginia, revenge porn is now a crime, as well as a civil cause of action for which legal remedies are available.
Under Virginia Code § 8.01-40.4, victims can sue for compensatory damages, punitive damages, and attorney’s fees. Injunctive relief may also be available. But what kind of financial recovery can vicitms expect to receive? How does one measure the emotional harm suffered as a result of sexual cyberbullying? If you bring a lawsuit and win, will the rewards outweigh the uncomforable and expensive process of open-to-the-public litigation? These are difficult questions to answer because–at least here in Virginia–few (if any) civil actions have been tried to verdict under the new revenge porn statute. But looking to some other jurisdictions may provide a clue as to what kinds of damage awards you might expect here in Virginia.
Let’s look at the recent Colorado case of Doe v. Hofstetter. The case was filed and decided before Colorado enacted its revenge-porn statute, but it’s still instructive as it appears to be one of the few revenge-porn cases that resulted in significant damages. In the Hofstetter case, anonymous husband-and-wife plaintiffs sued Mr. Hofstetter under various federal statutes, common-law tort causes of action, and state statutes, seeking compensatory damages, punitive damages, and injunctive relief. Mr. Hofstetter didn’t bother to show up, so the court assumed the following allegations to be true:
Hofstetter was in posession of certain “intimate, private and personal photographs” of Wife (how he came into possession of them is unclear, but it appears he was a former boyfriend) and he decided to publish them on his blog for the world to see. Needless to say, Wife had not authorized this publication. While “revenge” is not a necessary element of revenge porn, he was allegedly motivated by a desire to extract a modicum of revenge
for the ended relationship by disrupting Husband and Wife’s marriage.
He would eventually delete the photos from his blog (in response to a cease-and-desist letter from Wife’s attorney), but several months after he did so, he proceeded to email the photos to Husband, again seeking to interfere with the marriage. When that didn’t work, he created a fake Twitter account in Wife’s name and distributed the private photos through Twitter. All of this behavior is conduct that would meet the definition of revenge porn under Virginia’s new statutory scheme.
The court rejected counts brought under the Stored Communications Act, the Computer Fraud and Abuse Act, and the Electronic Communications Privacy Act, but held that the plaintiffs had alleged a valid claim for intentional infliction of emotional distress, finding the conduct at issue sufficiently extreme and outrageous.
An evidentiary hearing was held on the matter of crafting an appropriate remedy. After hearing testimony about the injuries both Husband and Wife experieced as a result of Hofstetter’s conduct, the judge awarded $155,000.00 to the two of them. The compensatory-damage component to the Wife included $5000 for counseling expenses, as well as $50,000 for her “severe emotional distress, pain, suffering, trauma, and anguish.” For punitive damages, the court awarded another $50,000. With respect to Husband, the court awarded an additional $25,000 in compensatory damages and $25,000 in punitive damages.
And yes, the court awarded injunctive relief as well, ordering that Hofstetter refrain from all contact or communication with either plaintiff; that he not post or publish any references to, or images of, either plaintiff, via any medium; that he immediately delete all photos he had previously posted; that he refrain from impersonating either plaintiff in the future (by fake Twitter account or otherwise); and that he immediately delete all images in his possession of either plaintiff.
A plaintiff in Hawaii was successful in obtaining an even higher award of compensatory damage in a revenge-porn case, but her situation was more severe. In Taylor v. Franko, after the female victim rejected the defendant’s marriage proposal and married another man, the defendant posted private nude photographs of his former girlfriend (some of which depicted her engaged in sex acts) on various adult websites. The plaintiff first learned about the distribution of her private photos at work, when a co-worker sent her an instant message asking if she had willingly posted graphic photos of herself online. The co-worker sent her a link to a website where her ex-boyfriend had not only enrolled her photos in an amateur porn contest, but had posted her real name and contact information. An Internet search revealed her photos had also been shared on a number of other porn sites. She was soon bombarded with instant messages and phone calls soliciting sex acts, some of which included threats of violence. She became depressed, gained weight, and developed “adjustment disorder with depressed mood.” The court was persuaded by her testiomny that she felt violated, humiliated, and devastated, and held that the “drastic” invasion of privacy was worth $425,000, considering her past, present, and likely future emotional distress and embarrassment.
Both of these cases were decided without the benefit of a revenge porn statute. Because Virginia has a specific law against revenge porn, victims seeking justice in Virginia face fewer hurdles than plaintiffs in jurisdictions without such laws in place. And to make the litigation process less daunting for victims and to ensure complete relief, the law even allows them to have their legal fees reimbursed by the wrongdoer.