Learning to live with ‘love porn’

In Germany last month, the Higher Regional Court of Koblenz ruled in favor of a woman who demanded that her former lover delete from his personal computer photographs he had taken of her — some of them nude or sexually explicit — with her full consent.

It might be thought that the Koblenz decision provides a model for how the morally reprehensible phenomena of so-called revenge porn and involuntary pornography can be legally addressed. That would be a mistake, since there is no evidence that the man had made or intended to make the images public. The German case concerns what we might more accurately call “love porn” — the fully consensual sharing of nude or sexually explicit images of oneself with a lover.

According to a survey commissioned this year by McAfee, the computer security software company, 54 percent of Americans have participated in this 21st century equivalent of the billet doux. Only when the creator or a recipient of such content posts it on the Internet, say, without the subject’s consent, has a person engaged in making involuntary pornography, and only if he or she does so with the intent to cause serious emotional distress to the subject has he or she engaged in revenge porn. The man in Koblenz did neither. In fact, even in refusing his ex-lover’s request, he did no moral wrong. Yet the court ruled that he is legally obliged to erase the images.

A similar verdict is virtually unthinkable in the United States, where intellectual property and artistic expression enjoy stringent protection under the Constitution and the First Amendment. Nonetheless, the verdict invites the consideration of a number of moral, legal, psychological and cultural issues.

The woman in the Koblenz case made herself vulnerable to harm in an utterly familiar way. It is essential to intimate relationships that we expose ourselves — psychologically, emotionally and physically — to our lovers. We give our lovers gifts, love letters and, often, sexually explicit selfies, trusting them to keep such things private. Even so, when I send a letter or photograph to my lover, those items become his property. He is not, of course, morally permitted to do whatever he wishes with them; he may not make my written or pictorial declarations of love for him public without my consent. Should he do so, he would violate my reasonable expectation that my written or pictorial missives are for his eyes only, and I would have moral grounds for complaint. The same is true if he had been the photographer and I a fully consenting subject. A legal analogue of this moral consideration can be found in contract law, aspects of which some scholars have argued might ground constitutionally defensible legal actions against revenge porn.

However, I have no moral claim that my lover must destroy or return letters and photographs to me just because our relationship has ended. To repeat, they are his property and, if he has taken them, his intellectual property. Moreover, he might reasonably wish to keep them as sentimental reminders of happier times.

So how do we account for the Koblenz ruling? Primarily through two articles of the German constitution that explicitly protect the inviolability of human dignity and the individual’s right to the development of her personality. Human dignity and all that is required to honor and maintain it inflect every aspect of German law. Thus, conceding that the photographs in the man’s possession were his intellectual property, the court ruled that the woman’s right to maintain control of personal information about herself took precedence. 

The U.S. Constitution offers nothing remotely like this kind of protection for the psychological and moral integrity of individuals. The closest equivalent notion — the right to privacy — is nowhere explicit in the Constitution. The strength of that right, which, depending on whom you ask, was discovered or made up by the majority in Griswold v. Connecticut, has been regularly tested and systematically undermined in a number of cases. Legal scholars almost unanimously argue that victims of revenge or involuntary pornography will have little success in pursuing under privacy torts either the person who posted the material or the websites on which the images are posted. Invasion of privacy claims will almost always fall to First Amendment considerations, and Internet service providers and websites enjoy broad immunity under Section 230 of the Communications Decency Act. Moreover, the brute technological facts of the Web present insurmountable practical problems for victims seeking the permanent removal of particular content.

Some critics have argued that Section 230 should be amended — and perhaps it should. In the meantime, a handful of states, including Arizona, Georgia and Maryland, have either enacted specific anti-revenge-porn laws (in some instances making its production a felony) or, like New Jersey, have deployed existing anti-cyberbullying statutes to criminalize it. New York looks poised to follow suit. The constitutionality of these laws has yet to be materially tested.

Of course, the deeper psychological dimensions of lovers sharing sexually explicit images cannot be ignored. Why do we do it? The simple answer is that we can and we want to. Lust is an extremely powerful emotion, easily amplifying natural human irrationality. This alone explains why young people take sexually explicit selfies and share them (even knowing how quickly a phone-camera picture can go viral on the Web).

Hit “send,” however, and second thoughts readily arise. Justifiably more so for women than for men. No one familiar with popular culture can fail to see that, confoundingly, women are still rewarded — and just as often punished — for being overtly sexual creatures. Women are not the exclusive victims of revenge porn, but they are overrepresented on the relevant websites and, because of our culture’s depressingly tenacious commitment to the sexual double standard, women are at risk for far greater substantive and reputational harms as a result of this exposure.

Perhaps this in part explains the vulnerability the woman in the Koblenz case felt, even with respect to consensually shared “love porn.” And she is no fool. Though her relationship with the man who took the pictures is over, she remained exposed — not just to him but to anyone who acquires access to those images. The German legal system offers her the resources to reduce that vulnerability. However, it has done so at the cost of violating the rights of another individual who is guilty of no moral or legal wrong at all.