Florida Revenge Porn Law
In Florida, sexual cyberharassment, commonly referred to as revenge porn, has been codified into Florida statutory law. The statute criminalizes sexual cyberharassment and provides victims a private right of action against the person who violated the law.
In “revenge porn” cases, images are typically consensually made but then published without the victim’s consent. Unfortunately, it has become a widespread practice for disgruntled persons to post sexually explicit images of another with the intent to cause substantial emotional distress to the person depicted in the images or videos. In order to safeguard the psychological well-being and privacy interests of persons who have been victims of sexual cyberharassment, the Florida legislature enacted statute 789.049.
Below is a helpful outline of the issues related to these claims, including answers to a few frequently asked questions.
4 Elements of Sexual Cyberharassment
- The Defendant published a sexually explicit image of the victim on an internet website.
- The image contained or conveyed the personal identification information of the victim.
- The Defendant published the information willfully or maliciously, for no legitimate purpose, and with the intent to cause substantial emotional distress to the victim.
- The victim did not consent to the publication.
(1) Sexually Explicit Image
A sexually explicit image means any image that depicts nudity or any person engaging in sexual conduct.
(a) Sexual Conduct
Sexual conduct means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of genitals; actual physical contact with a person’s clothes or unclothed genitals, pubic area, buttocks, or, if the person is a female, breast with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates the sexual battery is being or will be committed. A mother breastfeeding her child will not constitute sexual conduct under any circumstance.
(b) Image
These include, but are not limited to, any photograph, picture, motion picture, film, video, or representation.
(c) Nudity
This is the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, or the showing of female breasts with less than a fully opaque covering of any portion below the top of the nipple, or the depiction of covered male genitals in a turgid state.
(2) Personal Identification Information
Any name or number that may be used, alone or in conjunction with any other information, to identify a specific person.
(3) Willfully or Maliciously
Willfully means knowingly, intentionally, and purposely.
Courts have not determined whether actual malice or legal malice is required by the statute. Without this clarification, trial judges must choose one of the following:
- Maliciously means intentionally and without any lawful justification or
- Maliciously means with ill will, hatred, spite, or evil intent.
Civil Lawsuits for Sexual Cyberharassment
The statute allows for a civil remedy as well as criminal punishment, which allows victims of “revenge porn” to bring a private lawsuit against the perpetrator.
What Damages Can You Recover under the Statute?
A victim can seek injunctive relief, monetary damages of up to $10,000, or actual damages incurred as a result of a violation, whichever is greater as well as reasonable attorney fees and costs.
Injunctive Relief is Available
Victims may seek a permanent injunction, preventing the defendant from ever posting or otherwise using the images or disclosing the plaintiff’s name publicly. A plaintiff/victim seeking a permanent injunction must satisfy a four-factor test before the court may grant such relief [1]:
1) Plaintiff shows it has suffered an irreparable injury
2) Remedies available at law are inadequate to compensate for that injury
3) Considering the balance of hardships between the plaintiff and the defendant, a remedy in equity is warranted
4) The public interest would not be disserved by a permanent injunction
Strengths of the Statute
One of the strengths of Florida’s sexual cyberharassment law is that sexually explicit images are not limited to those images that solely depict nudity. If an image depicts a person engaging in sexual conduct it will also fall under the statute, regardless of nudity. Additionally, “image” is defined in the statute as including any sort of photograph, picture, motion picture, film, or video, but the list is non-exhaustive.
Under this law, internet service providers are excluded from liability, as well as law enforcement officers who publish sexually explicit images in furtherance of their duties in the interest of the public.
Another strength is that the statute establishes that if any element of the offense or any harm to the depicted person occurs within Florida, then the entire violation will be deemed to have been committed in Florida.
Weaknesses of the Statute
The statute’s weakness comes in its definition of personal identifying information. If a victim’s face is shown, without any other identifying information, perpetrators have not violated the statute. The law requires that the perpetrators disclose information such as the names or addresses of the victim in order to violate the statute. The statute also does not apply if images are published via text message, email, or physical copies, only images published to an internet website.
Lastly, the statute requires that offenders have the specific intent to cause substantial emotional distress, for both criminal and civil suits. Cybersexual harassment has become prevalent by online hackers who many times do not know their victims, likely motivated by financial gain with no specific intent to cause emotional distress. The statute leaves all these perpetrators free from punishment.
Frequently Asked Questions
Why can victims only recover $10,000 in damages?
The $10,000 maximum damages set by the Florida legislature is an effort to help those who cannot prove actual damages. The limit is only for those who cannot prove actual damages. For those individuals who can prove actual damages, there is no limit. The statute states “Monetary damages to include $10,000 or actual damages incurred as a result of a violation of this section, whichever is greater.”[2]
The statute aims to give victims an option to still recover in the case that they do not sustain actual damages from the violation. The Florida legislature is making it easier for victims to punish offenders by putting a dollar amount on recovery for victims without actual damages.
Can I bring a defamation claim as well as a claim under the statute?
The statute does not bar any additional causes of action. Plaintiffs are not limited in what or how many claims they can bring in conjunction with the statute. A plaintiff may also choose to bring a defamation claim, under libel or slander, as well as a claim under the statute.
Can underage victims bring a claim under the statute?
The sexual cyberharassment statute does not preclude underage victims from seeking a claim under it. However, Florida Statute 845.01357[3] (Exploited children’s civil remedy) creates a civil cause of action for victims of child pornography. Under this statute a victim will be deemed to have sustained damages of at least $150,000, making it a more favorable option for underage victims seeking a monetary award.
Is there any advantage to using the statutory claim over a common law claim of intentional infliction of emotional distress?
One of the goals of the statute is to set forth clear legislative intent. Without the specific language laid out in the statute, a judge would likely find that the legislature does not recognize the value of a private image, as traditionally the legislature has protected more conventional private items (such as a television, a vehicle, etc.). Without the sexual cyberharassment statute in place, it would be increasingly difficult for victims to bring forth a successful claim. The language of the statute creates a great advantage for those bringing a claim forward.
Additionally, claims of intentional infliction of emotional distress are quite difficult to prove, making a claim under the statute a more viable option for many victims. In the state of Florida, intentional infliction of emotional distress requires proof of the following three elements: (1) that the defendant acted intentionally or recklessly, (2) that the defendant’s conduct was extreme and outrageous, and (3) that the defendant caused severe emotional distress. [4]
An individual seeking relief must prove that the defendant’s actions were not only extreme and outrageous but also that the actions caused severe emotional distress. This is a very heavy burden for victims of sexual cyberharassment bringing a claim, especially since the severe emotional distress necessary for a claim of intentional infliction of emotional distress is not always measurable.
The legislature has created this statute to make it easier for victims to bring successful claims forward, in contrast to the rigid Florida standard for a claim of intentional infliction of emotional distress.
Relevant Case Law
As the Florida cyberharassment statute was only enacted in 2015, there is little case law pertaining to it. However, in 2021 the United States District Court for the Middle District of Florida decided Conradis v. Buonocore. [5]
In this case, the plaintiff posed for nude photographs for photographer Gregory Coleman in 2011. These photographs were not for public distribution or exhibition, and in 2018 the photographer and the plaintiff executed an agreement that made both parties joint and exclusive holders of the copyright to the photos.
The defendant, a hacker, got access to the photographer’s image storage and obtained the plaintiff’s nude photographs. The defendant then contacted the plaintiff through multiple social media accounts indicating that he was in possession of the images and demanded that the plaintiff send him more nude images. When the plaintiff failed to comply with these demands, the defendant disseminated the images and posted them on the plaintiff’s business Facebook page as well as shared them with the plaintiff’s professional contacts. The plaintiff filed suit claiming a violation of Florida Statute 784.049, seeking injunctive relief.
The court found that the nude images were sexually explicit, published on the internet without the plaintiff’s consent, and shared with the intent to harm the plaintiff without any legitimate purpose. Therefore, the defendant’s action was found to be in violation of Florida Statute 784.049.
Injunctive relief was granted, and the defendant was permanently enjoined from posting or using nude images or any other images of the plaintiff. All nude images were ordered to be removed from any platform where the defendant posted them and the defendant had to destroy all images of the plaintiff in his possession.
Do You Have a Question? Contact Us Today.
As a Board-Certified Civil Trial Expert for over 40 years, Alan Sackrin has extensive experience dealing with defamation claims, including those related to revenge porn. He offers a free initial consultation (over the phone or in-person) to answer your questions. When you’re ready to speak with an experienced defamation lawyer about your case, contact Alan today or give him a call at 945-458-8655.
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Footnotes:
[1] eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 126 S. Ct. 1837 (2006)
[2] § 784.049, Fla. Stat.
[3] § 847.01357, Fla. Stat
[4] McAlpin v. Sokolay, 596 So. 2d 1266, 1276 (Fla. 5th DCA 1992).
[5] Conradis v. Buonocore, No. 6:18-cv-1486-EJK, 2021 U.S. Dist. LEXIS 177241 (M.D. Fla. Sep. 17, 2021)
