Sharing and Taking Nude Pictures: What is the Law?

April 28, 2016

As the Erin Andrews case has shown, sharing nude pictures of celebrities is punishable in law. Andrews was awarded $55 million after she was illegally recorded in the privacy of her hotel room by a stalker and the footage was shared online. Now, the Erin Andrews case was distinctive due to the fact that she was videotaped without her knowledge in a hotel room, and the hotel was partly responsible for this. However, the sharing of her nude picture over the internet has raised the question of whether this is something that should be litigated against in civil law, whether this is, in fact, a sex crime, or whether this is even a crime at all. The legislation and past case law is vague, and the way in which the Internet is increasingly used to hack into private accounts to share information (including pictures) is an issue which the law has never fully addressed.

Now that the law is attempting to tackle the sharing of nude pictures, a number of issues have arisen that need to be considered carefully. First, the way in which the pictures were obtained must be investigated. In the case of the celebrity Jennifer Lawrence, it emerged that the pictures had been gained through hacking. This was investigated by Apple and the FBI. The agencies discovered that the hackers had gained access to the “Cloud”. The “Cloud” is the storage system that permits the users of Apple devices to access their information from different devices, be that a telephone or a computer, by the simple action of requesting new passwords and by answering information that was freely available on the internet in order to gain access.

In the sharing of nude pictures of celebrities, violation of privacy and fraudulent access to computing devices is an issue. It is an offense that has both civil and criminal liability under the Computer Fraud and Abuse Act 18 U.S.C. 1030(b), The Computer Crime and Intellectual Property Division of the Office of Legal Education of the Department of Justice has published extensive guidance on the prosecution of crime in this area. In Georgia, the 2010 Georgia Code § 16-9-93 – C provides guidance.

That said, the taking and sharing of nude pictures of people generally depends upon the way in which they were obtained. Even if pictures were taken with consent, new revenge porn laws which tackle the sharing of nude and explicit pictures (often by disgruntled former lovers) have recently been put in place. In the case of celebrities, however, the law may be slightly different. That’s because celebrities benefit from their “Right to Publicity”, which they often use to financially benefit from the commercial use of their image. In federal law, this legally recognized right has been expanded in case law and is usually used by celebrities to ensure that their likeness is not used without their permission. That would be the issue where nude pictures are concerned. That means that the party, or parties, sharing the nude pictures can be sued, and can have an injunction placed on them. Yet to do that would mean that the perpetrators actually have to be found. Websites are being closed down just to spring back up again all the time, often in different countries. The costs are huge, and trying to trace people and bring them to justice is not always worthwhile in terms of the efforts required. There may not even be any profits to recover, as many websites don’t even charge users for perusing images.

Matters then become even more complicated. A celebrity must prove that they owned the picture in question. This is more difficult than it sounds, as copyright law will require the celebrity to prove that they were either the photographer, or that they were given the rights to the picture by the photographer. In situations where people are no longer in touch or a relationship has ended, pursuing this may be just too difficult. Finally, once those pictures have gone live, they often go viral. As we have come to understand rather too late, once something is out there on the Internet, there may be no chance of ever reeling it back in again.