Turn on any entertainment-based television show, peruse the tabloids while waiting to checkout at the grocery store, or browse through your favorite celebrity gossip blog, and you’ll probably find a story about an ingénue’s leaked nude photos or a rap mogul embroiled in a sex tape scandal. Due in part to photo and video capabilities on our smartphones, tablets, computers, and even videogame consoles, cloud-based storage platforms, and jealous exes, these scandals are starting to affect the average person. And, since all of us are not lucky enough to have a manager, agent, or publicist help to deal with the fallout, here are a couple of “dos” and “don’ts” you should know:
- DO hire an attorney! Depending upon the specific circumstances, your case may either be civil or criminal. Drawing this distinction requires a nuanced analysis of the facts in each situation.
If your case is better suited for the civil route, your most likely causes of action will be for invasion of privacy and infliction of emotional distress. With regard to a cause of action for invasion of privacy, you’ll have to show intent on the part of the person who shared the picture and/or video, as well as the unwarranted publication of intimate details of your private life. With regard to a cause of action for infliction of emotional distress, you’ll have to show some severe or serious emotional distress (e.g., anxiety, depression, paranoia) and potentially intent or complete and total indifference to the emotional wellbeing of another.
If your case is better suited for the criminal route, your case will fall under California’s disorderly conduct law, which was amended in 2013 to include “revenge porn” legislation. This new legislation makes it a crime to photograph or otherwise take private, nude photographs of another person and distribute them in a way that is intended to and does cause emotional distress. In keeping with the times, this legislation was further amended in 2014 to criminalize the distribution of photographs taken by the victim themselves, or so-called “selfies.”
- DO keep the pictures and/or videos in their original format! The last thing that you want to do after making charges or filing a lawsuit is to alter or destroy the subject files. Not only is your attorney going to want to review everything, but you could be cited for spoiling and/or destroying evidence.
DON’T let attorney’s fees and costs dissuade you from hiring an attorney! Effective July 1, 2015, California enacted civil legislation similar to the criminal “revenge porn” legislation outlined above. This legislation explicitly allows for a prevailing plaintiff to recover reasonable attorney’s fees and costs from the other party.
DON’T share the pictures and/or videos with anyone else (outside of the authorities or legal counsel)! One of the hardest issues in invasion of privacy cases is proving damages (i.e., how a person has been harmed by the dissemination of his/her private information). Unless you can show, for example, that you were not hired for a job because of the pictures and/or videos or that you’ve developed some significant emotional and/or psychological pain and suffering, you’re going to have an uphill battle in proving damages. If the other side can then show that you were going around showing the harmful images to other people, you’re making your climb that much more difficult.
DON’T be worried about your sexual history being delved into! One of the primary concerns most people have when confronted with this situation, especially if they created the images themselves or the photograph and/or video was taken in a public area, is that their sexual history, sexual behavior, sexual relationships, and sexual partners will all become discoverable. This is simply not true as both the California and federal constitutions have found this information to be protected by a person’s fundamental right to privacy. Moreover, there is a mountain of case law which outlines that not only is this information often irrelevant in a pending lawsuit, any intrusion requires a demonstration of “direct relevance,” or something more than a possibility.
DON’T worry about your name getting out there! Another concern most people have when deciding to bring one of these claims is that the case will be permanently attached to their name – after all, you can find almost anything on Google these days! However, there is case and statutory law supporting a plaintiff’s decision, whether in a civil suit or a criminal suit, to file the suit under a pseudonym (e.g., Jane Doe or John Doe) or by just using initials.
Should you find yourself confronted with leaked nude pictures or photographs, the attorneys at Kramer Holcomb Sheik LLP are here to help! We will work to stop any further dissemination of your private information, including drafting a demand letter, requesting a temporary restraining order, and/or filing a lawsuit. Please don’t hesitate to give us a call at (310) 551-0600.