Cyberbullying and nonconsensual pornography (otherwise known as “revenge porn”) are two of the most common ways in which videos are misused online to harm others. Arming yourself with knowledge of the laws, policies and legal developments surrounding these types of video misuse can empower you take action or help someone who may be affected.
Cyberbullying is bullying that occurs through direct text messaging, in forums, on social media, or via any other online platform or website where people can view, participate in, or share content. According to stopbullying.gov, a website managed by the U.S. Department of Health and Human Services, “cyberbullying includes sending, posting, or sharing negative, harmful, false, or mean content about someone else [and can] include sharing personal or private information about someone else causing embarrassment or humiliation.”
Bullying can take many forms, including video content. A bully can post a video disparaging or making fun of his or her victim, or upload an embarrassing or personal video of the victim without consent. Or, as was the case in Los Angeles in December 2016, a bully can physically attack a victim, have the attack videotaped, and then post that video online as a form of cyberbullying.
Bullying can take many forms, including video content.
Jordan Peisner, a 14 year old from the Los Angeles neighborhood of West Hills, was sucker punched by another teenager while a third person stood by recording the attack. The punch resulted in a concussion, skull fracture, ruptured eardrum, hearing loss and more, but that didn’t stop the bullies from posting the video on SnapChat where it went viral. The attacker was subject to criminal prosecution but the videographer was ultimately not held accountable. Local lawmakers were upset with this lack of accountability. They proposed a bill dubbed “Jordan’s Law,” that would make the malicious recording of such an assault a felony, and deem the videographer an accomplice in the act. It was proposed in early 2017, shortly after the attack, and became California law in October of 2017.
While this case of cyberbullying included physical harm and therefore subjected the bully to criminal prosecution, most anti-bullying laws and policies are aimed at school administrators, teachers, and parents, and therefore don’t criminalize cyberbullying but instead define it and provide information about how to deal with and prevent it. In fact, stopbullying.gov states that “there is no federal law that specifically applies to bullying.” Instead, there is a vast network of anti-bullying laws and policies covering all 50 states and most U.S. territories, and almost all include cyberbullying provisions. This is a good start, and a successfully passed state law that addresses specific harm caused by cyberbullying can get nationwide attention and perhaps lead to federal legislation down the road, as in the case of Jordan Peisner.
More colloquially known as “revenge porn,” nonconsensual pornography (NCP) is defined by the Cyber Civil Rights Initiative (CCRI) as the “distribution of sexually graphic images of individuals without their consent.” CCRI is a non-profit organization advocating for technological, social, and legal innovations to fight these online abuses. The reason revenge porn is less accurate than the broader term, NCP, is that NCP is not always motivated by revenge or necessarily any personal feelings toward the victim and merely alludes to posting pornographic content without consent.
There is currently no federal law against NCP, leaving state legislatures to their own devices. According to CCRI, 38 states and the District of Columbia have so-called “revenge porn laws” on the books today, though not all the laws are created equal. Some states consider revenge porn a misdemeanor with perhaps a slap on the wrist, while others deem it a felony, landing perpetrators in jail.
Where state legislators aren’t moving quickly enough, local lawmakers are stepping in. New York State’s revenge porn bill, for example, is stalled in the state’s legislature, so New York City voted in November 2017 to make revenge porn a crime.
This state-by-state solution may not be ideal, but it’s a step in the right direction.
Policies, Community Guidelines and Online Social Platforms
Social media and video sharing sites all have community guidelines that help users spot and report abusive content, and often provide information about what to do if you’ve been victimized.
YouTube, for example, has a page dedicated to harassment that describes cyberbullying, provides information on what to do about it, and links to a reporting tool that allows users to report harassment. Facebook has a robust safety center with a bullying prevention hub that educates teens and parents, gives guidance on thinking before sharing, and provides information on mental health, privacy, and safety concerns, among other things. Snapchat’s safety center, similar to Facebook’s, has community guidelines that define harassment and bullying, gives tips on how to avoid being bullied, and provides resources for victims, including a short questionnaire that helps users easily report abusive content.
When it comes to NCP, policies and guidelines tend to be largely the same. PornHub, a popular pornographic video sharing website, has a page dedicated to the removal of nonconsensual content. Less obvious sites like Google, Reddit, Facebook, Twitter and Bing have been used to post and search for NCP as well and all have ways in which users can flag content to be taken down. Facebook even teamed up with CCRI and published a guide called “Not Without My Consent” to “offer tips and advice for anyone who may encounter abusive content” related to NCP or revenge porn.
We all need to work together to protect victims, eradicate abusive content, and ultimately stop online abuse from happening in the first place. As lawmakers continue introducing legislation and websites do their best to respond to user complaints, we video viewers and content creators need to do our part, too. If you see video content that appears to be bullying someone, especially someone you know, report it. If you know someone who wants to upload a video that can be categorized as bullying, urge them to think about the harm it could cause to the victim as well as the legal trouble they can get into.
Mark Levy is an attorney admitted to practice in New York State and Florida who concentrates on intellectual property law. He has won numerous awards as an amateur movie maker. Roman Zelichenko, based in New York City, is a writer and entrepreneur with intellectual property experience, and has drafted legal opinions and articles on the subject. Follow him on Instagram: @rzelichenko