OTLA Trial Lawyer Winter 2022

44 Trial Lawyer • Winter 2022 known that the other person does not consent to the disclosure; (3) The other person is harassed, humiliated or injured by the disclosure; and (4) A reasonable person would be harassed, humiliated or injured by the disclosure. ORS 163.472 is not perfect. Violation is usually only a Class A Misdemeanor, and the statute doesn’t contemplate the threat of unlawful distribution of intimate images. Moreover, the unlawful dissemination of an intimate image is not recognized as a “sex crime” under ORS 163A.005 or for the purposes of ORS 137.719, which could potentially affect a court’s willingness to treat revenge porn as a form of abuse for other legal purposes, such as for petitions for protective orders. The specific intent of the perpetrator is not only arguably irrelevant, but also limited in that it fails to address those cases of nonconsensual pornography where the main motivation is, for example, financial gain, entertainment or sexual gratification. This is what occurred in Jane’s case. Prosecutors declined to press charges due to concern they could not establish John intended to “harass, humiliate or injure” Jane by his disclosure of the images in question. Despite these challenges, passage of SB 188 represented a significant step forward in recognizing the harm done to survivors of nonconsensual pornography. However, problems remained with respect to the availability of remedies and redress for harm, especially in cases where prosecutors declined to press charges, as occurred with Jane. What, then, should Jane do? Civil liability Until recently, victims like Jane faced an uphill battle to establish civil liability against perpetrators of revenge pornography. Jane could have sought to copyright the images under section 512 of Digital Millennium Copyright Act and thereafter request they be removed from the site. However, to register the copyright and stop strangers from seeing her nude pictures, Jane would have to send more pictures of her naked body to more strangers: the individuals at the U.S. Copyright Office. Instead, Jane elected to file a civil lawsuit against John for injunctive relief and damages arising out of the common law claims of invasion of privacy and intentional infliction of emotional distress. Unfortunately, these common law claims do not always provide a clear path to recovery or an adequate recognition that an individual’s right of sexual privacy is one worth protecting. Although the fact finder in Jane’s case ruled against John on liability, they did not award Jane all of her claimed damages on the ostensible basis the disclosure could not have been overly harmful to her since she herself willingly took and shared the photos with John in the first instance, and thus “assumed the risk” that further dissemination might occur. Fortunately, in 2019, the Oregon Legislature took another step toward achievable justice for victims of imagebased sexual abuse by creating a civil cause of action for violations of ORS 163.472 with passage of HB 2393. Effective January 1, 2020, ORS 30.833 grants victims the right to a civil action to secure an injunction, damages or other appropriate relief against any and all persons whose actions are unlawful under ORS 163.472. The prevailing plaintiff in such an action is entitled to recover: (1) The greater of: special and general damages, including damages for emotional distress, or statutory damages of $5,000 per plaintiff against each defendant; (2) An amount equal to any economic gain received by the defendant for the disclosure; and (3) Punitive damages. The statute also authorizes the court to award reasonable attorney fees to a prevailing plaintiff. Jane’s case would have undoubtedly been more successful under this legislation. Challenges remain AlthoughORS 30.833 provides a new and useful framework for redressing revenge porn, from a practical standpoint, numerous additional challenges present potential obstacles to efficient resolution of these cases. For instance, what if in the example above Jane resides in Oregon, but John resides in a different state, and he sent and posted the images of Jane from a jurisdiction outside of Oregon? Does John fall under the purview of the Oregon long-arm statute, ORCP 4, sufficient to subject him to personal jurisdiction in Oregon? Certainly, the impact of his conduct was felt in Oregon, a fact significant in light of the U.S. Supreme Court’s Calder “effects test.” Calder v. Jones, 465 US 783 (1984). But given the Court’s subsequent decision in Walden v. Fiore — which rejected the view the “effects test” from Calder is satisfied merely by the defendant’s commission of an intentional tort that is aimed at a person known to be a resident of the forum state — the answer will depend on adducing additional facts, such as whether John availed himself of or otherwise sufficiently directed his conduct at the forum (by, for example, sending images to Jane’s friends and family members in Oregon, as opposed to posting images to a social media or revenge porn site more broadly available). Walden v. Fiore, 571 US 277, 289-90 (2014). Similar issues may arise in a choice of laws analysis, especially if John resides in a state that has its own revenge porn Revenge Porn Continued from p 43 Un f o r t una t e l y, t h e s e common law claims do not always provide a clear path to recovery or an adequate r e c o g n i t i o n t h a t a n individual’s right of sexual privacy is oneworth protecting.