Privacy Injunctions

Privacy and Security

Article Snapshot

Author(s)

Danielle Citron

Source

Emory Law Journal, 2021, forthcoming.

Summary

Nonconsensual distribution of intimate images seriously harms victims. New laws should be passed to protect rights to intimate privacy.

Policy Relevance

Courts should be empowered to enjoin sites to remove intimate images. Such laws would not violate free speech rights.

Main Points

  • “Intimate privacy” involves norms that protect boundaries surrounding aspects of intimate life such as sex, sexual orientation, gender identity, and close relationships.
     
    • Intimate privacy is insufficiently protected.
       
    • Intimate privacy should be respected as a civil right.
       
  • Violations of intimate privacy, such as the circulation of a “deepfake” video purporting to show the victim committing a sex act, causes physical, emotional, and psychological trauma.
     
    • About one third of victims were harassed in person or on the phone by people who saw the intimate images.
       
    • Victims may hesitate to form relationships.
       
    • Victims may lose their jobs and struggle to find new employment.
       
  • Legislation should be passed to support injunctive relief in cases involving violations of intimate privacy, allowing courts to order sites to remove nonconsensual intimate images.
     
  • The proposed Uniform Civil Remedies for Unauthorized Disclosure of Intimate Images Act empowers victims to seek injunctive relief and attorneys’ fees, unless the posted images are in the public interest; Arkansas, Iowa, South Dakota, Nebraska, and Colorado have adopted this law.
     
  • Congress should amend Section 230 of the Communications Decency Act, empowering courts to enjoin web sites and platforms to remove nonconsensual intimate content and pay attorneys’ fees.
     
  • Several courts have ruled that state laws barring distribution of nonconsensual pornography are narrowly tailored to serve a compelling state interest, and do not violate the First Amendment.
     
  • The public might have a legitimate interest in reading about a public official’s intimate life, but distribution of nonconsensual images of the official’s intimate life is not in the public interest.
     
  • European Union (EU) data protection laws regulate distribution of information about a person’s sex life and/or other sensitive information; the EU recognizes a “right to be forgotten,” which allows data subjects to petition sites to delete irrelevant information linked to their name.
     
  • Some tech companies limit distribution of nonconsensual intimate images.
     
    • Google will suppress search results for individuals on a registry of “known victims.”
       
    • Facebook uses “hashing,” a mathematical process that helps computers detect duplicate images, to block nonconsensual intimate images.
       
    • Hashing should be used to limit the spread of images internationally.
       

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