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:
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.
Intentional or reckless actions
Extreme or outrageous conduct
Actions caused the distress
For those celebrities claiming that the images are fake, they may have a possible cause of action for defamation—specifically, libel.
A false statement of fact
Communication to a third party
Intent or negligence
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.
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.”
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.
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
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.
Saper Law Immersion Program 2022 will be held August 1-5! This year's program will be held at Saper Law Offices.
Currently in its 9th year, Saper Law Immersion Program
Saper Law Immersion Program 2022will be held August 1-5! This year’s program will be held at Saper Law Offices.
Currently in its 9th year, Saper Law Immersion Program offers high school and college students the opportunity to explore legal career paths in one exciting week. The course takes place at Saper Law Offices and is taught by Daliah Saper and other Saper Law attorneys. For the 2022 program, the curriculum consists of negotiation and writing exercises, field trips, and mock legal proceedings. Since Saper Law practices heavily in the areas of social media and digital technology, a key component of the exercises will involve entertainment, business, and internet-related legal case studies.
Both high school and college students are encouraged to apply via the Saper Immersion website. Applications for the 2021 session are due July 15. Applications are reviewed on a rolling basis, so students are encouraged to apply early. The deadline for application withdrawal is July 15.
Since 2005, Saper Law has represented a wide variety of clients from around the world. Our attorneys have made headlines for tackling
Since 2005, Saper Law has represented a wide variety of clients from around the world. Our attorneys have made headlines for tackling novel internet and social media cases, and we are consistently ranked as a top law firm for intellectual property, entertainment, new media, and business law. Join us for a toast to celebrate our 17th anniversary! Tuesday evening August 2nd from 5:30pm to 8:30pm at I|O Godfrey Roofscape.
Tickets are $10 and all proceeds will benefit the Highland Park, IL Parade Shooting Victims Fund.
Should You Buy a Bored Ape?
The Rise and Fall of NFTs From a Legal Perspective Since 2020, Non-Fungible Tokens (NFTs)
Should You Buy a Bored Ape? The Rise and Fall of NFTs From a Legal Perspective
Since 2020, Non-Fungible Tokens (NFTs) have increasingly grown in popularity. Individuals, small and big businesses, and celebrities have all jumped on the NFT bandwagon – creating, selling, and investing in NFTs. But what exactly are they and why should you or your business care? What are the legal considerations, benefits, and pitfalls of creating or investing in an NFT? We will be discussing these questions with special guest speaker Phil Gomes.