Distribution of “Revenge Porn” and Deepfakes is Now an Offense in Massachusetts

Last month distribution of “revenge porn” – nude or sexually explicit photos or videos shared online without the consent of the person pictured – became a criminal offense in Massachusetts, as part of a bill aimed at protecting victims of abuse The Commonwealth became the second-to-last state in the country to outlaw this kind of distribution (leaving South Carolina the lone state without a law specifically addressing this issue). Congress also passed a law in 2022 that allows victims of revenge porn to sue in federal court to recover damages from the person who disclosed the images and to enjoin further sharing. The new Massachusetts legislation closes several legal gaps in state law and contains measures designed to prevent harmful online exploitation.

The typical revenge porn case involves photographs taken by or sent to an intimate partner, who then either shares them with others or posts them online. The term “revenge” porn comes from cases where the images are distributed to get revenge on a former partner by damaging their reputation or to blackmail them. However, people often share such images for other reasons, such as wanting to share an image with friends or for economic gain or entertainment. Because revenge is not always the motive, other terms such as image-based sexual abuse or nonconsensual distribution of intimate images are gaining currency as more accurate descriptions of the offense.

What is criminalized under the Massachusetts statute?

The Massachusetts statute makes it a form of criminal harassment for any person to knowingly distribute visual material that depicts a nude or partially nude person, or a person engaged in a sexual act, where the person is readily identifiable and where the distribution causes them physical or economic harm or substantial emotional distress. The person distributing the images must have either intended to cause harm, harass, intimidate, coerce, or threaten the victim; or they must have recklessly disregarded the risk of such harm. Reckless disregard has three components: (1) disregard of the likelihood that the victim would experience harm, harassment, intimidation, threat, coercion or substantial emotional distress; (2) disregard of the victim’s lack of consent to have the images distributed, and (3) disregard of the victim’s reasonable expectation that the images would remain private. The statute specifies that a person’s consent to the creation of an image does not constitute consent to the image being distributed.

Distribution of deepfakes

With this legislation, Massachusetts also joins approximately twenty other states that have criminalized the distribution of deepfakes – photos or videos that are digitally altered so that the photo appears to depict something that did not actually occur. Deepfakes take various forms and are created for various purposes; the new Massachusetts legislation applies specifically to sexually explicit deepfakes. The law criminalizes the distribution of “visual material produced by digitization,” with digitization defined broadly to include computer-generated or altered images that a reasonable person would understand to be an authentic image of the person shown.

Penalties

A person found guilty under the statute is subject to up to two and a half years in a house of correction, or a fine of up to $10,000, or both. The statute specifies that if the image depicts a child, the person distributing it may also be punished for possession of child pornography. However, the law provides an affirmative defense for minors’ possession of sexually explicit images of themselves, and sexually explicit images of a 16 or 17 year old consensually sent by that 16 or 17 year old to the minor charged with the crime. Any minor charged with possession or distribution of explicit images of another minor are to be directed to a specialized diversion program before arraignment or during pre-trial probation (subject to the district attorney’s objection and the court’s determination of whether diversion is appropriate). The specialized diversion program is to be developed by the attorney general as a broad effort to educate young people about the potential legal and non-legal consequences of sexting and distributing explicit images online, and to divert these cases away from the juvenile justice system.

Intent to cause harm and First Amendment challenges

In other states with similar statutes, tensions have focused on the question of whether the distribution of intimate images should only be punishable when the person distributing them intends to harm the victim. Activists in favor of broad criminalization of the non-consensual sharing of sexual imagery criticize statutes that require proof of intentional harm because those laws may not allow for the prosecution of individuals who share images for other reasons, whether economic or for entertainment or otherwise, but nonetheless cause harm to the victim. On the other hand, statutes that contained no intent requirement have been struck down on First Amendment grounds because they opened the door to prosecution for publishing nude photos for artistic or expressive purposes.

The Massachusetts statute attempts to address these tensions in a few ways. There are specific carve outs for cases where nude or explicit images are shared voluntarily for commercial purposes, where the person depicted did not have a reasonable expectation of privacy, and where the distribution is in the public interest or on a matter of public concern. The statute does not permit the prosecution of social media sites, websites, or internet service providers for the distribution of content provided by others. The reckless disregard standard also seems to be an attempt to protect innocent sharing while recognizing that not all sharing is motivated by a specific desire to harm the victim. The requirement that the distribution causes the victim physical or economic injury or substantial emotional distress further reduces the possibility of unwarranted prosecution for sharing that carries no risk of harm.

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