Nowadays, it is quite common for individuals to take photographs and/or videos of a sexual nature and share them with their current relationship partner. Unfortunately, sometimes the relationship ends in an acrimonious way and the recipient of said photographs and/or videos decides — who might feel wronged or slighted — decides to share them with others as a way of getting even. The term “Revenge Porn” is often used to describe this situation.

In California, perpetrators of Revenge Porn (i.e. those who share sexual photos and videos of others) can be punished in a variety of ways. For example, there’s criminal prosecution under California Penal Code section 647(j)(4), which I will cover in a later post. One key thing I’ll point out now, though, is that if the victim in a Revenge Porn case is a minor (e.g. 16 or 17 years old), additional charges related to, for instance, child pornography may be on the table also. Many criminal sentences (e.g. jail time) are also increased for Revenge Porn cases involving a victim who is a minor.

In this post, I’ll briefly go over the civil suit liability under California Civil Code section 1708.85(a), which provides:

“A private cause of action lies against a person who intentionally distributes by any means a photograph, film, videotape, recording, or any other reproduction of another, without the other’s consent, if (1) the person knew that the other person had a reasonable expectation that the material would remain private, (2) the distributed material exposes an intimate body part of the other person, or shows the other person engaging in an act of intercourse, oral copulation, sodomy, or other act of sexual penetration, and (3) the other person suffers general or special damages as described in Section 48a.”

In other words, you can definitely get sued civilly and be forced to pay heaps of money if you commit Revenge Porn. To make matters worse for Revenge Porn perpetrators, section 1708.85 is only one way in which you can be sued. A civil suit stemming from Revenge Porn can be filed under many other theories and statutes also.

I’ve bolded various important parts in section 1708.85(a) that I would consider the key criteria that need to be proven or disproven, depending on which side of the case you’re on. For example:

• The distribution underlying the revenge porn must be intentional. Accidental stuff doesn’t qualify.
• Not all material that is distributed qualifies. It has to be either a photograph, film, videotape, recording, or reproduction thereof.
• The person depicted in the material distributed did not give consent to the distribution.
• The person depicted had a reasonable expectation the material would remain private.
• The material distributed depicts either an intimate body part of the plaintiff or shows the plaintiff engaging in sexual intercourse, oral copulation, sodomy, or other act of sexual penetration.
• The plaintiff suffers general or special damages as described in Section 48a of the California Civil Code.

Section 1708.85 has subparts (b) through (j) which I will not go over in this post. If you’re contemplating a civil lawsuit for Revenge Porn in California, I highly recommend you look those subparts up because they go over worthwhile things, such as how the plaintiff can file the case under a pseudonym. In a Revenge Porn civil suit under section 1708.85, the court can also grant attorney’s fees and costs (see section 1708.85(e)).

As always, I hope this post helped. Please do your own research if you plan on using the information I described above as the law may have changed in the time between when you’re reading this post and when I wrote it. If you’re involved in a Revenge Porn situation in California, please do find a lawyer in your area with whom you can discuss the facts of your case.

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Andy Chen

Attorney-at-Law at The Law Offices of Andy I. Chen

Andy I. Chen is a lawyer licensed to practice law in California and New York. Andy maintains offices in Los Altos, California and Modesto, California. Under the New York Court of Appeals' 2015 decision in Schoenefeld v. State of New York, Andy does not accept cases from those in New York state. He does, however, know many lawyers in New York state and would be happy to make a referral.

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