A Breach of Trust: Fighting 'Revenge Porn'

Abstract

Nonconsensual pornography, also known as “revenge porn,” is the distribution of sexually graphic or intimate images of individuals without their consent. As scholars have argued, it is, and should be treated as, a crime. But even with a national law criminalizing nonconsensual pornography, attorneys have to get creative to provide necessary civil remedies to victims in need. This essay argues that practitioners should add the tort of breach of confidentiality to their arsenal of tools to fight nonconsensual pornography. Presenting evidence from, among other sources, a series of first-person interviews with victims of cyberharassment, this essay shows that nonconsensual pornography does violence to essential social norms of trust at the core of social interaction. As such, the tort of breach of confidentiality, which focuses on remedying breaches of trust, should be deployed to help victims of “revenge porn” obtain justice.

Keywords: privacy, revenge porn, trust, breach of confidentiality, tort, copyright, public disclosure of private facts