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March 27, 2014, 5:11 p.m.
LINK: gawker.com  ➚   |   Posted by: Joshua Benton   |   March 27, 2014

At Gawker, Michelle Dean has a piece on revenge porn — the awful practice of jilted men (mostly) posting explicit videos and pictures from their exes online — and the legal backlash building against it. There are bills pending in at least 24 states to ban or otherwise limit revenge porn, and a federal bill is coming.

We’ve written before about a similar issue — those skeezy mugshot sites that post pics from public records and then offer to take them down for a price.

To state the obvious, most online publishers are in neither the mugshot extortion business nor the revenge porn game. But even the most legitimate publishers should be watching this space because, in both cases, changing Section 230 of the Communications Decency Act is one of the ideas being tossed around. Section 230, as this old Nieman Lab video will tell you, is the part of U.S. law that says (in nearly all cases! I am not a lawyer!) that websites aren’t held responsible for what’s posted by their users. If one of your readers falsely calls his neighbor a child molestor in the comments section of your news site, that reader might well be guilty of libel — but your site isn’t. In a very real sense, it’s the law that allows the Internet as we know it to exist; imagine if sites had to preclear all user contributions everywhere, whether on a blogging platform, on Twitter, or elsewhere.

As Mary Anne Franks, a University of Miami law professor working on the federal revenge porn bill, tells Gawker:

…online entities protected by Section 230 of the Communications Decency Act are provided with a special defense against state criminal laws, but not against federal criminal laws (or federal copyright laws, for that matter). A federal law means that a revenge porn site claiming to merely provide a platform for angry exes to upload sexually explicit images of their former partners will not be able to hide behind Section 230.

And as Gawker commenter dontshootme responds:

I think the EFF’s concerns [about amending 230] are being under valued here. The likelihood of overreach is very large, in my opinion. Also, it strikes me as being very dangerous to start messing with Section 230. I get that this is a very real problem, I just suggest a knee-jerk reaction by lawmakers (which is what almost always happens with public outcry type stuff) will result in bad law…

Maybe it’s just me, but I seem to see a lot of talk about how “bad” section 230 is (not in this article) so when I see issues like this, I get concerned that a law will be created that generates an exception. I believe we should go after the ones who upload. [Revenge porn king] Hunter Moore’s situation is fairly straightforward, but what about sites that link to it? Are they responsible? How about if I linked to it here in the comments, is Gawker responsible? Right now, no. If we weaken 230 then censorship gets easier and easier.

Here’s an overview of the issue from the pro-legislation side.

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