California amended its disorderly conduct statute, Penal Code section 647, twice in recent years to include instances of “revenge porn.” Revenge porn is criminal conduct under Penal Code §647(j)(4). The first convictions under this statute have started coming down and more prosecutions are sure to follow.
A violation of Penal Code section 647(j)(4) can occur when a person’s former lover or spouse posts nude photos or footage of the victim on the Internet. The pictures were taken with consent but posted maliciously and with the intent to cause serious emotional distress. The first conviction of violating this statute involved a man in San Diego who ran a revenge porn website. He was convicted on 27 separate counts of violating this statute.
Original versions of the revenge porn law only covered images taken by the defendant. Changes to the law amended this and the source of the images is now irrelevant. Pictures taken by the defendant, selfies, or pictures taken by third parties are covered by the law. Images that obtained through hacking are covered [not to mention hacking is a separate crime.] One requirement of the law is that there had to be an agreement between the parties that the images would remain private and the defendant, in distributing the images, violated that agreement. The agreement does not have to be express, it can be inferred from the conduct of the parties.
There are many concerns about whether or not these laws violate the First Amendment. There are also issues regarding vagueness, particularly with the requirement that the parties have an agreement the images remain private. The amendments to Penal Code section 647(j)(4) are so new that such concerns have not yet been addressed by appellate courts.