Several new North Carolina laws become effective today, December 1st, 2015. Among them are some privacy law enhancements including provisions that are known as the "revenge porn" statute. [Session Law 2015-250] Just over half of the states currently have such laws on the books, and about nine states' statutes create a civil remedy. The statutes are designed to address a troubling trend of people posting intimate images or video of another person, usually a former partner, on the internet to gain "revenge" by humiliating the person. Some states' courts recognize common law legal theories that can be used to combat this activity, but many states concluded that a specific statute was necessary and appropriate. As of today, North Carolina is among them.
The new statute makes it unlawful to "disclose a private image" if all five of the following facts and circumstances are present:
(1) Intent. The person knowingly discloses an image of another person with the intent to coerce, harass, intimidate, demean, humiliate, or cause financial loss to the depicted person (or cause others to do so).
(2) Identifiable. The depicted person must be identifiable from the disclosed image itself or information provided in connection with the image.
(3) Private Parts or Conduct. The depicted person's intimate parts are exposed or the depicted person is engaged in sexual conduct in the image.
(4) Lack of Consent. The person discloses the image without the affirmative consent of the depicted person.
(5) Expectation of Privacy. The person discloses the image under circumstances such that the person knew or should have known that the depicted person had a reasonable expectation of privacy.
A violation of the statute is a felony and gives the person who is the subject of the image a right to sue the offending person. In a lawsuit, the subject of the image can recover his or her actual damages (which are assumed to be the higher of $1,000 per day for each day of the violation or $10,000); punitive damages (to punish the offender); and attorneys' fee and other litigation costs. A court can also order the destruction of the image(s). The lawsuit must be filed no later than one year after the discovery of the offense, and no later than seven years after the last known disclosure of the image.
The criminal penalties may be subject to a Constitutional challenge in the future, because the First Amendment guarantees rights that the statute could be interpreted to limit. Similar statutes in several other states have been challenged on Constitutional grounds. It will be interesting to see how North Carolina's statute will fare when the inevitable challenge comes.