Republisher of Youthful Sexting Photos Avoids Liability (For Now)–Doe v. Peterson

By Eric Goldman

Doe v. Peterson, 2011 WL 1120172 (E.D. Mich. March 24, 2011)

This is an interesting sexting lawsuit. Doe took explicit photos of herself and sent them via MySpace to her then-boyfriend. She did not follow my recommendations for good legal practices when sexting. The parties dispute how old she was when she took the photos. Doe claims she was just under 18; the ex-boyfriend says she was over 18.

The photos subsequently started appearing at various websites. The opinion doesn’t say whodunit. Eventually, someone uploads the photos to exgfpics.com, run by Erik Peterson. (Erik’s dad got dragged into the lawsuit as well, but we’ll just focus on Erik in this post). [Note: the website is strictly NSFW] The website did not conform to various practices that a lawyer might recommend. Erik apparently curated the photos but didn’t verify the age of the women in the uploaded photos, he added his own comments about the photos (sort of in a “thedirty.com” way, although perhaps not as mercilessly mean), and he didn’t maintain any 2257 records. Thus, the website occupied a weird zone between a “pure” UGC site and an editorially controlled publication; it’s much closer to the latter, but it didn’t appear to be run with the legal compliance that is expected of such publications.

Doe learned of the photos at exgfpics.com and asked her ex-boyfriend for an explanation. The case omits details of that conversation. In any case, her ex-boyfriend said he sent some takedown notices to exgfpics.com without results. Then, Doe sent her own takedown notices. Erik says he never saw those. Eventually, Doe sued and served Erik’s dad. It still took a few more days before the photos came down.

The case first addresses Erik’s “in pari delicto” defense–basically, that Doe broke the law by creating and distributing child porn (pictures of herself), and therefore the law shouldn’t help her out. The court rejects the defense, concluding that Doe is considered a victim of the child porn statutes and therefore should not be denied the statutory protection.

At the same time, the court denies Doe’s summary judgment motion under 18 U.S.C. 2252A(a)(2), the law that prohibits child porn distribution. The law has a civil remedies component to it, which is at issue here. (The opinion doesn’t mention if the feds are considering a prosecution).

The parties still dispute Doe’s age when she took the photo, but the court says it would deny Doe’s motion even if that wasn’t in dispute. The court disregards Erik’s failure to maintain 2257 records, saying that only gives rise to criminal liability, and the absence of such records does not satisfy 2252A’s “knowing” requirement.

Doe’s takedown letters don’t confer 2252A knowledge either. The court seems to require that the plaintiff send the republishing website evidence of her real age (such as a driver’s license); merely asserting that she was underage aren’t enough to create scienter. However, her notices did create inquiry notice, which the court doesn’t resolve in this ruling. The court also says that Doe’s asserted minority status wasn’t apparent from the photos themselves (a fact Doe admitted).

Thus, on the knowledge standard, the court concludes:

At best, Plaintiff’s allegations establish that there is a genuine issue of material fact regarding whether Defendants knew she was a minor in the pictures (because they read her emails) or that they were deliberately indifferent to that fact (because they had no verification procedures in place and failed to monitor the website’s email accounts). This does not, however, amount to proof that Defendants violated 18 U.S.C. s 2252A as a matter of law.

There are so many oddities about this case, I’m not even sure where to begin. Let’s start with the most obvious: why didn’t Doe claim a copyright interest in her photos? Either Erik was the original publisher of the photos, in which case he would be strictly liable, or he was storing the photos at the direction of the uploader, in which case a 512(c)(3) takedown should have done the trick. (Although exgfpics.com doesn’t have a 512 agent for service of notice, and obviously the site’s legal compliance work wasn’t the sharpest). I’m still a little confused why Doe didn’t bring a copyright claim. Perhaps, like the Moreno v. Hanford Sentinel case, the copyright damages weren’t worth the effort. Cf. the Lara Jade Coton case.

Now, a totally different oddity: could Erik claim 47 USC 230 protection here? After all, the photos came from a third party source, and Doe is suing Erik for republishing third party content. 47 USC 230 wouldn’t protect Erik from a federal criminal prosecution, but it should apply to Doe’s civil claim under federal anti-porn statutes. See, e.g., Doe v. Bates and Voicenet v. Corbett. Perhaps the site’s overall structure as a quasi-revenge site might make the site more vulnerable to a Roommates.com attack (it’s similar to the harassthem.com analogy in Kozinski’s first opinion). Even so, it would have been logical to try the defense, but the opinion didn’t mention it at all.

Next, if we’re not governed by either 17 USC 512 or 47 USC 230, then exactly what legal standard applies to a web republisher of alleged child porn? The notice-and-takedown approach Doe tried here was potentially less legally effective than it would have been for copyright. That discrepancy seems odd for a civil child porn claim. Even though there is the obvious difficulty ascertaining the depicted individual’s age, that information gap is what 2257 tries to fill, and determining age often isn’t any more difficult than determining if a photo is free to republish under copyright law.

Finally, it is disquieting to see a commercial web publication publishing nude photos of women without their consent and without any effort to verify their age. (Given the site’s premise as a quasi-revenge site, it’s not surprising that neither the uploaders nor the site operator attempt to get the depicted individual’s consent). Due to child porn’s toxicity, this basic architecture seems like bad news. Erik appears to be lucky that this judge was able to maintain a cool head; many other judges would have thrown the book at him. Still, if it turns out that Doe was underage, can a criminal prosecution be avoided?

For another example of sexting gone wrong, you might want to look at this NYT story about what happens when a 13 year old sends a nude picture of herself to her then-boyfriend, who forwards it on to her nemesis, which leads to the photo goes viral, which leads to lots of bad things happening.

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