Florida’s Revenge Porn Statute 2.0
In many respects, the legal landscape governing social media, the Internet, and data technology as a whole is relatively undeveloped. Federal law remains a patchwork of various laws attempting to regulate bits and pieces of an expansive whole. Many pieces of the puzzle remain altogether unregulated. The glass half-full mentality, however, begs us to spotlight the recent development in Florida’s sexual cyberharrasment law and the positive implications that this development will invariably have on victims across the state.
In 2015, Florida became one of twenty-four states at the time to pass a revenge porn statue. Daniel Castro & Alan McQuinn, Why and How Congress Should Outlaw Revenge Porn, Info. Tech. & Innovation Found. (July 2015), http://www2.itif.org/2015-congress-outlaw-revenge-porn.pdf. “Revenge porn is a particularly pernicious form of online harassment in which a perpetrator distributes sexually graphic images of a person without his or her consent.” Id. Most cases of revenge porn, or sexual cyberharassment, actually begin with consent, typically given between partners in a trusted and intimate relationship. When the relationship takes a turn for the worst, however, one partner ends up seeking revenge by circulating or disseminating the private images of the other. The embarrassment, hurt, and shame brought upon victims of revenge porn can leave them feeling powerless and without any recourse against the perpetrator.
Fortunately, and to the surprise of many, the law and the Florida Legislature have managed to keep up with the rapid technological developments feeding the practice of sexual cyberharassment. The original 2015 version of Florida’s sexual cyberharassment statute, as codified in section 784.049 of the Florida Statutes, left much to be desired. Fla. Stat. § 784.049 (2015). One of the largest drawbacks with the statute was its incredibly narrow scope. For one, it only applied to victims whose photographs had been posted to Internet websites, leaving victims whose images had been disseminated via social media platforms or electronic devices without any legal recourse. If, for example, the perpetrator had sent out a mass text message to the victim’s friends and family, bearing the victim’s intimate photo(s), the statute provided zero protection.
Further, the statute confined the definition of sexual cyberharassment to the publication of a sexually explicit image containing personal identification information. The definition of personal identification information, though expansive, focused on more tangible and concrete identifiers, such as the victim’s name, postal or electronic mail address, telephone number, social security number, date of birth, mother’s maiden name, driver license number, alien registration number, government passport number, employer or taxpayer identification number, Medicaid or food assistance account number, bank account number, credit or debit card number, PIN number, or unique biometric data. In theory, these various identifiers could certainly be included alongside a sexually explicit image but, in reality, that’s rarely the case. Oftentimes, an image of this type is not accompanied by any additional identifiers other than the face of the victim, if that.
As a result of the gaping holes in the initial version of Florida’s revenge porn statute, the Florida Legislature revisited the topic and amended much of the problematic language described above via Senate Bill 1136. Perhaps the most significant revision was the amendment of the definition of sexual cyberharassment to include publication “to an Internet website or [to] disseminate through electronic means to another person.” Fla. Stat. § 784.049 (2019). In the face of ever-evolving technologies that facilitate the instantaneous sharing of information with others on a global scale, this broad language covers nearly every form of information sharing that might arise. Further, the Florida Legislature also amended the definition of personal identification information to “any information that identifies an individual, and includes, but is not limited to, any name, postal or electronic mail address, telephone number, social security number, date of birth, or any unique physical representation.” Again, this broad language referring to any identifier provides a wider scope of protection to victims of revenge porn that find, for example, their face, tattoo, or birth mark in a sexually explicit image of themselves that makes no mention of their name or address.
On May 23, 2019, Florida Governor Rick Scott signed Senate Bill 1136 into law, marking a monumental step in the development of cyberharassment law in Florida. In many respects, the ratification of Senate Bill 1136 exemplified the very nature of the political process. The public voiced a need in the law, the legislature created a law it thought would meet this need, and when the shortcomings of the law came to light, the legislature readily amended the law to address them. In terms of the legislative process, section 784.049 of the Florida Statutes is a success story.
Although being victimized by sexual cyberharrasment is an experience that no one should ever go through, Floridians can find solace in the fact that the law is, finally, on their side. Victims may seek both criminal and civil penalties against a perpetrator, including injunctive relief, monetary damages in the amount of $5,000 or actual damages, and attorney’s fees and costs. This is in addition to the various other civil actions that victims may bring, such as public disclosure of private fact, violation of the right to privacy, and the unauthorized use of one’s name or likeness.
If you have been affected by sexual cyberharassment, feel free to contact Johnson | Dalal at (954) 507-4500 and ask to speak to one of our qualified attorneys at no charge. We look forward to answering any questions you may have.
