Doe v Peterson is an interesting, yet in many ways a frustrating sexting case, leaving unanswered questions concerning the liability of third party republisher websites for pornogrphic images they host under US federal child pornography laws.
In the recent US case of Doe v Peterson a Conneticut Court gave the green light for a plaintiff’s civil action to proceed against a defendant website for re-publishing nude images of herwhich violated federal pornography laws pursuant to the Child Pornography Protection Act of 1995 (the “CPPA”).
In addition, the Plaintiff Jane Doe brought civil proceedings against the Defendant website for a number of state common law claims including intrusion upon seclusion, public disclosure of private facts, intentional infliction of emotional distress and negligence.
As a young seventeen year old girl, four months shy of her 18th birthday, the Plaintiff had taken explicit nude photos of herself, uploaded them to an online photo website, before sending them to her then boyfriend over the internet via social networking site mySpace . She claims she did this at his request, intending the photos remain private between her and her then boyfriend. She c laims she deleted all copies after they were sent to him.
Approximately one and a half years later the photos emerged on a website called imagebeaver, from which they were taken down after the Plaintiff contacted the website demanding that the photos be removed. The website owner complied with her request after being informed by her that she was only 16 years old at the time the photos were taken.
However a month later she became aware of the existence of 12 photos of her which has been posted to another website called submityourex.com , allegedly uploaded by an unknown user of the site.
Doe’s law suit was not brought against either of these sites, rather a third website owned by the defendant Erik Peterson called “exgfpics.com’. The site encourages men to submit nude photos of their ex-girlfriends, wives, or current girlfriends, indeed “any female showing her stuff“.
One of the website’s rules is that the subjects of the photos must be 18 years or older. The defendant claimed he had no foolproof way of knowing whether users adhered to the rules and the only measure he could take was to evaluate the pictures himself to make that judgement.
A conflict ensued when the Plaintiff requested the images be taken down and the identity of the user who posted the images on the site be divulged. There was some delay in the Defendant agreeing to take the images down leading to the suit against the Defendant.
An interesting aspects of the case, which hasn’t yet proceeded to a full trial, was a defence raised by the Defendant in response to the Plaintiff’s claim. The Defendants pleaded the doctrine ‘in pari delicto’ ( a latin phrase meaning ‘in equal fault’) as a bar to any suit being brought by the Plaintiff against him.
‘In Pari Delicto’ is an equitable doctrine where the party seeking relief is said by the law to be equally involved in the wrongdoing alleged. A plaintiff’s actions found to be in pari delicto are deemed to be just as bad or worse than the conduct the plaintiff is suing over, and the doctrine can be invoked to bar a Plaintiff being able to bring a suit. However the doctrine is only invoked where the culpability of the parties is ‘roughly equal’.
The defendant contended that by taking the pictures of herself and sending them over the internet, the plaintiff was herself in breach of child pornography laws. Therefore her case should be dismised because the wrongdoing she complained of derived initially from her own actions in creating and distributing the pornographic images as a 17 year old.
In cases where in pari delicto has been established, courts have often refrained from granting relief to litigants. However in the case of Doe v Peterson the Court denied the Defendants’ request, granting Doe’s motion to strike out the in paro delicto defence the Defendants attempted to raise to defeat her action.
Even though the court conceded the plaintiff was clearly herself in violation of federal laws proscribing the production and distribution of child pornography under the CCPA, it still held as a matter of law that the doctrine was unavailable to the defendants in this instance.
The defendant was involved in the possible violation of federal offences relating to pornography laws. The Court remakred that they would not countenance the doctrine to be invoked in a civil suit such as the one before it served which served such an important public purpose.
The plaintiff, being a minor, was a member of the very class which the legislation was designed to protect. Even though it was clear she herself had breached the same legislation (s2252A), the Court ruled she was not equally as culpable as the defendant in permitting the distribution of the illicit images.
The Court remarked that the child pornography regime was a detailed one aimed specifically at deterring and monitoring child pornography. The bringing of civil suits was one of the ways child pornographers are discouraged from disseminating and distributing child pornography.
The Court emphasized that the Plaintiff was not equally as culpable as the defendant as the real harm lay not so much in the photos being created, but in their widespread circulation on the internet without her consent.
This sexting case is an interesting one in relation to the manner the Court approached the argument that because Doe broke the law by creating and distributing child porn in the form of pictures of herself, the law shouldn’t therefore help her out.
In refusing to entertain this defence the court concluded that Doe is considered a victim of the child porn statutes and therefore should not be denied the statutory protection of the CPAA.
One concerning aspect of the court’s ruling is found in the denial of Doe’s summary application for civil judgment for the Defendant’s breach of the CPAA prohibiting the distribution of child pornography. It is not yet known whether Police are considering launching a federal criminal prosecution against the defendant.
The Defendant had statutory obligations under the CPAA to retain certain records relating to the verification of the age of a subject. His failure to do so did not seem to satisfy the court that he had the requisite degree of “knowledge” of the plaintiff’s age and therefore of the existence of the child pornographic images under the CPAA. Nor did the plaintiff’s takedown requests appear to be regarded by the Court as sufficient to confer this knowledge on the Defendant for the purposes of civil liability.
It isn’t apparent why the Plaintiff did not rely on a copyright claim in the photos the subject of contention. If the defendant was the original publisher of the photos he would presumably be liable for infringement, having stored the photos at the direction of the person who uploaded them.
In this event, a s512(c)(3) notice and takedown attempt would surely have been legally effective, or more legally effective than than the takedown issued to the defendant, a third party republisher, requested him to take down the content the Plaintiff had informed him constituted child pornography.
The case is disturbing in that it doesn’t seem to specify what standards of verification a court would expect of a third party republisher to satisfy itself of a subject’s legal age, or what legal standard a court would be prepared to accept as sufficient to impute knowledge of a person’a age to republishers of alleged child porn so as to render them liable under the legislation.
The defendants website was a commercial website enthusiastically engaged in publishing nude photos of women without their consent and without any effort to verify their age. The whole structure and intent of the site revealed it to be in the nature of a revenge site against women by men, which may partly explain why there was no attempt by either the uploader of images or the owner to obtain the subject’s consent.
As previously stated elsewhere, in Australia there is no statutory action for theother common law actions brought by the Plaintiff in the US case such as public disclosure of private facts and intrusion upon seclusion. Neither is there is any statutory provision for an invasion of privacy or as clear a common law right of action for invasion of privacy as exists in other common law countries such as New Zealand or the UK.
Law reform bodies in New South Wales, Victoria and at the Federal level have been grappling with the issue of statutory reform which would lead to the enactment of a statutory action for invasion of privacy, however thus far there has been a failure to achieve a consensus on the shape the legislative proposals should take.
The Australian Law Reform Commission has recommended that a person must have a reasonable expectation of privacy and only invasions of privacy that would be highly offensive to the reasonable person of ordinary sensibilities should be subject of a statutory cause of action.
The NSW proposals recommend that the law only provide for a violation of a reasonable expectation of privacy and unlike the Commonwealth proposals, don’t mandate that a publication satisfy any offensiveness threshold to be actionable.
Similar to the Commonwealth proposals, Victoria has recommended a high offensiveness test and proposed the introduction of two privacy actions. The first would deal with public disclosure of private information, whilst the second would cover the intrustion on seclusion which is intended to combat covert surveillance in public places, rather than encompassing all forms of surveillance which are personally intrusive.
The Victorian law reform proposals also make provision for a public interest defence, incorporating a balancing of the competing interests of privacy and free speech.
The common law provides limited protection through other possible causes of action such as the equitable action for breach of confidence, and defamation, however as recent high profile cases reveal, there is a lack of certainty as to how persons can legally enforce their rights to privacy in a digital environment where images are virally disseminated.