LOS ANGELES — “Revenge Porn” — the heinous instance of harassment when someone distributes intimate photos or videos of a former romantic partner without their consent — is a topic that elicits universally negative reactions.
In a society increasingly polarized by political and social issues, we all seem to be in agreement that people who engage in this type of intrusive shaming should be stopped and punished.
And so several state legislatures in the U.S. have decided to tackle the issue by debating and passing a number of “revenge porn” laws, attempting to define the items in question and the manner of distribution in a number of slightly different ways.
Earlier this month, the Georgia Senate passed SB 78, an act drafted as a comprehensive overhaul of the way the state criminal justice system handles instances of “revenge porn.”
But the language of the new bill, currently being debated by the state’s House of Representatives, is a good example of why it is so tricky to attempt to legislate the production and distribution of sex content, even while attempting to outlaw a seemingly clear-cut, widely condemned practice such as “revenge porn.”
The problem is that legal, consensual pornography is such a controversial subject among mainstream politicians that there is little clear language on how to legislate the distinction between lawful sex content production and distribution, and their illegal counterparts.
Porn's Carefully Negotiated Balance
Leaving aside the crucial issue that legal pornography exists in a carefully negotiated balance between free speech and definitions of “obscenity” and “pruriency,” whenever legislators — at the of federal or state levels — decide to carve out definitions of illegal sex content, they end up drafting language that could end up accidentally outlawing consensual content and, worse, leading to the prosecution of legitimate adult producers and models.
This is particularly true in the current era of constant content creation for online platforms and premium sites like OnlyFans, and of informal shoots that are then monetized, be it “content trades” or through the use of a romantic partner as a costar or co-producer.
Laws like the proposed Georgia statute could potentially generate issues for lawful porn producers, not because it was drafted with that intention, but because its language could open the door to criminalizing conflicts between estranged co-producers.
The uncertain wording of “revenge porn” laws like Georgia’s (most states have or are working on versions of it) should specifically serve as a wake-up call for models who have grown complacent about generating “paperwork” (including model releases, 2257s and distribution agreements) with informal partners.
The Language of Georgia's 'Revenge Porn' Law
Take, for example, the definitions of the Georgia law, which has four sections:
The law penalizes a person who “knowing the content of a transmission or post, knowingly and without the consent of the depicted person: electronically transmits or posts, in one or more transmissions or posts, a photograph or video which depicts nudity or sexually explicit conduct of an adult, including a falsely created videographic or still image, when the transmission or post is harassment or causes financial loss to the depicted person and serves no legitimate purpose to the depicted person”
(Incidentally, the draft also turns SB 78 into one of the first instances of “deepfake law,” which it calls “a falsely created videographic or still image.” That wording, however, could also criminalize collages, memes or other lawful artworks, and it may still be sometime before legislators can come up with a definition of deepfake that would stand to close scrutiny.)
The language of the first two of the four parts of the law is already problematic, making the definition of criminal transmission either being “harassment” or “causing financial loss” and “serving no legitimate purpose” to the depicted person.
A Nightmare Scenario for a Content-Producing Model
Imagine this scenario: "A" is an OnlyFans model who consensually makes a sex video with her boyfriend "B" and posts it to the premium site. Some time later, A and B have a messy breakup, and B moves out and takes a job at a law firm. Time passes and someone at the firm finds the video and fires B.
According to a reading of the Georgia law, B could then go to the police and accuse A of “revenge porn,” because it caused him financial loss.
If A had her paperwork in order, she could prove that B gave his consent to appear in the video, and that he was also aware of how it would be distributed. However, if A did not have documentation, she could now face criminal liability and be forced to prove it through costly legal proceedings.
Sections Three and Four broadly define the places where the illegal distribution may take place as “a website, peer-to-peer file-sharing site, thumbnail gallery, movie gallery post, linked list, live webcam, web page, or message board which advertises or promotes its service as showing, previewing, or distributing sexually explicit conduct.”
This is also interesting from a legal standpoint because the last part of the definition seems to offer a definition of “pornographic website” that seems novel and might run into a serious constitutional challenge, but not before someone actually gets charged.
An Industry Lawyer's Perspective
XBIZ spoke to industry attorney Corey Silverstein, from Silverstein Legal, who marveled at the thoroughness of the Georgia bill.
“They really thought this out,” Silverstein said. “I have to say this is one the most all-encompassing of this kind of bill that I have seen yet.”
Silverstein also noted that the ambiguous language could potentially result in some messy prosecutions of people who “don’t do their homework” by having their paperwork in order.
“I’ve been saying for years,” he explained, "you have to prepare for the future for when something goes wrong. You have to get at the very least model releases for every piece of content you shoot and distribute — it’s not really an option not to.”
“This is true, I would say, especially if you shoot with your boyfriend or girlfriend,” he added. “This law would make whatever they define as ‘revenge porn’ into a one-to-10 year felony, a fine of $200,000, or both. People have to think about this. I see, all the time, disagreements about content between people who are in relationships today and then break up tomorrow.”
'You Don't Want to Be That Person'
Silverstein also encourages content producers to “take raw footage of the consent that you save and you don’t distribute it. Have all the models clearly state that they are doing this of their own free will, and also that they are aware that you will putting it online to make money.”
“This is not just [advice] for the big studios. If you’re a pornographer — and if you make content, you are — it’s a huge difference from people who are not, who don’t make commercial sex content.”
These statutes, Silverstein concluded, even if well-intentioned, “are going to be leaving holes all over the place.”
“Then someone will get charged and they’re gonna be put in the position of having to prove consent. There are constitutional challenges that would be argued, of course, but in order to do that first someone has to get charged.”
“And you don’t want to be that person.”
