Cyberbullying and Revenge Porn: Victim Challenges to the Internet’s Dark Side

Cyberbullying

The internet has many wonderful things such as online shopping, quick communication with friends, and easy access to, among other things, cute animal videos. However, it has also become a hotbed of criminal activity thus resulting in an entirely new category of victims; that is, individuals subject to bullies online. Two offenses that have grown in popularity are revenge porn and cyber bullying. While separate, offenses, each cause detrimental harm to victims from miles away with just the click of a button.

What is Revenge Porn?

Revenge porn is the non-consensual dissemination of sexually explicit photos or videos of an individual on the internet. Typically, the practice is carried out by former sexual partners or internet hackers in order to gain control and leverage over the victims. For example, in 2014, a series of over 500 nude photos of several female celebrities, including Jennifer Lawrence, Amber Heard, Rihanna, and Kate Upton, was leaked online. Hackers had accessed these photos through various phishing scams and a breach in Apple’s iCloud service. A massive outcry ensued and several men were convicted, including one former Virginia school teacher.

What Legal Protection is there for Revenge Porn?

In 2014, the Virginia General Assembly banned revenge porn by prohibiting the malicious dissemination or sale of nude or sexually suggestive images or video “with the intent to coerce, harass, or intimidate” another person. Va. Code § 18.2-386.2(A). Anyone who is not licensed or authorized to disseminate or sell the images is guilty of a Class 1 misdemeanor. Va. Code §18.2-386.2(A). The law was amended in 2019 to prevent the use of “deepfakes.” Deepfakes occur when individuals edit videos and images by super-imposing someone’s image over an existing photo or altering one's speech in a video. These are often used to create fake pornographic videos or images. Because of the advances in technology and artificial intelligence, these videos and images can appear real to the untrained eye. As of 2019, it is unlawful in Virginia to use deepfakes or disseminate or sell images or video of a person or to modify the video or image with the intent to depict an actual person.

Since the 2014 law was enacted, only one published case appears to exist. In Morehead v. Commonwealth of Virginia, 66 Va. App. 241 (2016), Scott Morehead appealed his misdemeanor conviction for posting nude and sexually explicit images and videos of his ex-wife on the internet. Specifically, Morehead posted a video and several nude photographs of his ex-wife on “myex.com,” a revenge porn website where individuals can post images and videos of former partners. In addition to posting on the website, he emailed his wife the link to the myex.com post and posted it on her work’s Facebook page with a comment stating “come see the manager after you see her here.” The appellate court ruled that his intent was malicious and that by posting the images and video on the internet and notifying his ex-wife of the posts, he clearly violated the statute.

While revenge porn hasn’t been heavily prosecuted yet in Virginia, millions of people are victimized by revenge porn on a daily basis. Since 2016, according to the Data and Society Research Institute, over 10 million Americans have been threatened with or been the victims of revenge porn. Women are twice as likely to be victimized. Virginia is one of over forty states to prohibit this practice, although it is one of the first states to specifically prohibit deepfakes.

What is Cyberbullying?

Cyberbullying has become a popular medium for anyone to harass, embarrass, or threaten individuals online. With the advent of social media, texting, and anonymous digital forums where content can be viewed by strangers, this practice has risen in popularity. From 2007 to 2016, the incidents of cyberbullying almost doubled.

What Legal Protection is there for Cyberbullying?

In order to combat this growing epidemic, Virginia passed a law in 2000 stating “if any person, with the intent to coerce, intimidate, or harass any person, shall use a computer or computer network to communicate obscene, vulgar, profane, lewd, lascivious or indecent language, or make any suggestion or proposal of an obscene nature, or threaten any illegal or immoral act, he shall be guilty of a Class 1 misdemeanor.” Virginia Code §18.2-152.7:1.

Virginia courts have broken the crime of cyberbullying into three elements.

(1) A victim needs to prove a cyberbully possessed the intent to coerce, intimidate, or harass.

(2) The cyberbully must have sent one or more computer message that contained obscene language or made a suggestion or proposal of an obscene nature.

(3) The computer message must involve an “illegal” or “immoral” act. An “illegal” act is defined as an act that violates the criminal code and an “immoral” act is defined as an act violating society’s social code.

In 2012, the Virginia Supreme Court held in Barson v. Commonwealth, 284 Va. 67 (2012), that the first element only applied to an obscene communications and that vulgar, profane, lewd, or lascivious communications didn’t violate the statute. In order for a communication to be obscene, it must be sexual in nature with no serious literary, artistic, political, or scientific value.

Since being enacted, the statute (Virginia Code §18.2-152.7:1) has been used on several occasions to prosecute cyberbulliers. For example, in Moter v. Commonwealth, 61 Va. App. 471 (2013), Richard Moter was convicted on three counts of computer harassment in addition to previous stalking convictions. Moter, a thirty-seven year old male, was convicted of stalking a nineteen year-old female. He spent years in and out of jail for various threats and repeated contact with the victim in violation of his original sentence. In 2010, four years after his original conviction, Moter sent over 40 Facebook messages to the victim threatening to charge her with perjury if she didn’t reply to him and making extremely lude and sexually inappropriate comments . Both the trial court and subsequent appeals court ruled that Moter was in clear violation of the statute as he sent obscene communications over the internet, made suggestions of an obscene nature, and committed immoral acts.

Victims Need to Stand Up and Know Their Rights

Revenge porn and cyberbullying are just two examples of how improper use of the internet can harm innocent victims. Legislators must respond quickly to create protections for victims of these crimes. Under Va. Code §22.1-279.6, local Virginia school boards must have policies related to bullying and criteria for disciplining bullies, including cyberbullying. On the federal level, legislators are hoping to pass the SHIELD (Stopping Harmful Image Exploitation and Limiting Distribution) Act, H.R. 2896, which would prohibit revenge porn. While criminal remedies continue to be put into place, civil remedies are not as prevalent. However, victims in Virginia can assert civil actions based on defamation and tortious interference with contractual relations and business expectancies. Unfortunately, Virginia does not have an invasion of privacy or general harassment civil remedies - at least not yet. Victims of cyberbullying and revenge porn should seek out experienced and creative legal counsel to assist them in this unique new area of the law.

Attorneys Colleen M. Quinn and Kate Miceli of the Women's Injury Law Center at Locke & Quinn are available to provide legal help to victims of revenge porn and cyberbullying and can be reached at quinn@lockequinn.com and miceli@lockequinn.com.

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