The Legal Fallout of “The Fappening”

The unauthorized dissemination of nude photos has always been scandalous and controversial.  The Apple iCloud hacking of A-List celebrities such as Jennifer Lawrence, Kate Upton, and Kirsten Dunst, however, has pushed this controversy into the national spotlight.

Although determining who the hackers were and how exactly they entered the Apple iCloud system will be an extremely complicated matter, we can at least anticipate the kind of legal action that will be brought against those responsible:

Copyright Infringement

The most likely claim—and most mentioned by the news media—is copyright infringement. Federal law gives the author of an image the sole right to reproduce, distribute, and display the image, and anyone who does so without permission may be liable for infringement. Thus, the author of the picture, whether it be the celebrity themselves or another individual who took the picture, can bring a claim for copyright infringement and demand that any posts of the images be removed.

However, the authors can not sue the websites on which the images have been posted if the website complies with the Digital Millennium Copyright Act (DMCA).

DMCA Compliance Requires:

• Designation of an individual to receive takedown requests
• Monitoring for known infringements
• Warning users of violations of copyright
• Removal of any infringing content upon the receipt of a takedown request

Following the DMCA compliance rules protects the website from a lawsuit stemming from any infringing post made by one of its users. Therefore, as long as the website follows the takedown policy, the holder of the copyright will have to pursue the individual users. This is much more complicated, due to the anonymity of a site like 4Chan, and most likely less lucrative than pursuing the entity behind a large website.

State Specific Claims

-Infliction of Emotional Distress-

Depending upon the harm suffered, a claim for either intentional or negligent infliction of emotional distress is a possible action for the celebrities to bring.

Elements:

• Intentional or reckless actions
• Extreme or outrageous conduct
• Actions caused the distress
• Actual distress

-Defamation-

For those celebrities claiming that the images are fake, they may have a possible cause of   action for defamation—specifically, libel.

Elements:

• A false statement of fact
• Communication to a third party
• Intent or negligence
• Harm

While a picture may not initially appear to qualify at “statements,” courts have deemed pictures “statements” for the purposes of libel (the written form of defamation as opposed to slander which is spoken). Thus, those celebrities who claim the images are fake (and can prove it) may try to bring a claim of libel.

-Right of Publicity-

Outside the standard tort actions, there are some other claims that the celebrities may bring depending upon the state in which the claims are brought. Some states acknowledge an individual’s right of publicity, which stops others from using one’s image for         commercial gain without the individual’s consent. There are reports that some of the hackers who possessed the images were actually selling and trading them online for profit. The sellers clearly did not have the permission of the celebrity in the image to do so and would be subject to this cause of action.

-Revenge Porn-

Another state specific action is “revenge porn” or “involuntary porn” which is the posting of sexually explicit material of another online without their consent. While more  commonly brought against spurned exes, the claim may be brought by the celebrities as the images are certainly sexually explicit and were obtained and posted without the subjects’ consent. Therefore, if the hackers fall within the jurisdictions of one of the few states with these laws, they will most likely be found guilty.

-Right of Privacy-

Additionally, the celebrities may bring a claim for violation of their right of privacy—sometimes referred to as the “publication of a private fact.”

Elements:

• Public disclosure
• Fact is actually private
• Disclosure is offensive to a reasonable person

Potential Apple Suit

Finally, the celebrities may be able to bring suit against Apple itself. While there has not been much success with such suits in the past, the individuals may be able to establish major precedent by accusing Apple of negligence with their data security. Certainly, the privacy policies and end user license agreements that Apple requires it users to sign before use will complicate matters, the nature of the attack could result in a suit that would set major precedent for tech company security requirements. If the attack really happened as has been hypothesized—through a “brute force” effort of repeatedly guessing passwords or the answers to security questions of targeted accounts—it is such a common and predicable method of hacking that Apple could be found negligent for not protecting against it. In fact, Twitter was subject to such a hack in 2009, putting other companies on notice that such an attack may occur without proper security measures in place.

Therefore, it is possible that celebrities could claim that Apple knew of such attacks and failed to take the necessary precautions of more complex security parameters to protect its users’ sensitive information. Apple could likely argue that its privacy policy provides adequate disclosure of its security measures. Apple may also be able to argue that the individuals were negligent themselves if their passwords were not complex enough. Whether such a suit is filed remains to be seen but the potential ramifications of a court finding against Apple could change how data storage is protected across the Internet.

Conclusion

The major public dissemination of the personal photographs of various celebrities has thrust the question of people’s right in their image to the forefront of the national dialogue. Although the celebrity victims of this massive hack and subsequent disclosure have numerous state and federal actions at their disposal, only time will tell if and how the perpetrators of this colossal crime will be caught and punished.  What is certain is that such a far-reaching and highly-publicized wrong will not be ignored

****Update****

Hollywood lawyer Marty Singer, who represents over a dozen of the hacking victims, has written a demand letter to Google threatening to sue them for a $100 million  if they don’t remove the naked photos of his clients that have been illegally leaked online.

Read the letter in full here: https://pagesix.com/2014/10/01/lawyers-for-hacked-celebs-sue-google-for-failing-to-removing-nude-pics/