If Someone Sends you a Photo of Themselves, Do you Own It?

May 14, 2015 by 4 Comments
Parade Selfie by Paul Sableman from Flickr (Creative Commons License)

Parade Selfie by Paul Sableman from Flickr (Creative Commons License)

Frequently I hear questions like, “If someone emails or texts me a photo of themselves, does it become my property?” Many people in this situation want to know if they own the photo and what they are allowed to do with it.

The answer to “Do I own the photo?” is “Yes” and “No.” Yes, you do own a copy of the photograph by virtue of the fact that someone gave it to you. However, owning a copy of a photograph does not mean that you own the copyright in the image, which is why you can’t do whatever you want with the picture. If the person who sent you a photo intended to give you the copyright as well, the copyright assignment would have to be in writing.

Think of getting a photo via email or text message like it getting a postcard in the mail. The postcard was addressed to you so you now own it, which means it you can look at it, put it on your refrigerator, and if the message doesn’t contain something that any reasonable person would know the sender would expect to be kept private – you could show it to others. However, you cannot make photocopies of the postcard and sell it or send it to others without the copyright holder’s permission.

Keeping this in mind, it should be obvious that the fact that someone sent you a photograph does not give you permission to do whatever you want with it. You would have to get permission from the copyright holder to post it online, and if it’s an image the sender would expect you to keep private, merely showing it to others could be illegal. If the photo in question is an explicit image, showing it to others could violate your state’s revenge porn law, which may be a felony.

With few exceptions (like child pornography) having a photo is not illegal but what you do with it could be. Therefore, if someone sends you a photo of themselves, you may keep it for your personal viewing pleasure but it could be illegal to share it with others.

This is an area of law that is still evolving. Since mobile devices come equipped with cameras, it’s important for everyone who has one is mindful of their dos and don’ts regarding sending and receiving images. If you want to talk more about this topic, please contact me directly or connect with me on social media via Twitter, Facebook, YouTube, or LinkedIn.

Filed Under: Intellectual Property, Internet law, Photography & the Law Tagged With: , , , , , , , , , , ,

Why is it Hard to Remove a Post from The Dirty?

March 16, 2015 by 2 Comments
Clubbin' by rudlavibizon from Flickr (Creative Commons License)

Clubbin’ by rudlavibizon from Flickr (Creative Commons License)

For those of you who don’t know, The Dirty is a website where a person can post “dirt” about another person. It’s a website where you can post celebrity sightings, make fun of people, and call out somebody for cheating on you, etc. The purpose of the site, from what I can tell, is to provide people a forum to post truthful stories and others can read and post comments about them.

As a social media attorney, I regularly get calls and emails from people who claim there is a false post about them on The Dirty or a similar site and they want me to get it removed. Many of these people don’t want to get the police involved, file a lawsuit, or pay a lot of money to make this happen. I think a lot of them hope that a letter from a lawyer would be sufficient to get a post removed. Sometimes that works, but sometimes that is not the case – especially when it comes to The Dirty.

The people who run The Dirty and their attorney understand the First Amendment. They tell their users only to post truthful information, but for the most part, they can’t tell when someone is telling the truth or not in a post. If the poster says what they wrote is true and the person they wrote about says it’s not, how would the people who run the website know who is telling the truth? The Dirty gets thousands of requests from people claiming that a post on the site contains lies about them. With few exceptions, they won’t remove a post simply because you asked them to.

I’ve never met The Dirty’s attorney in person, but we’ve exchanged several emails. My conversations with him tell me that he is a kind and thoughtful man and also a very good attorney. He won’t tell his client to remove a post just because a person is upset that a story about them is on the site or because he gets a demand letter from that person’s attorney; however, he will comply with court orders to remove material, which usually requires some type of injunction or prevailing in a defamation, invasion of privacy, or similar lawsuit. The Dirty also appears to have respectful policies related to revenge porn and false posts about an individual having an STD.

When I meet with someone when I meet with someone who claims to be the victim of defamation and/or invasion of privacy on one of these sites, I often have to inform them that the law doesn’t care about what they believe or even what they know; the law cares about what you can prove. When it’s a case of he said versus she said, there is often not much I can do. Yes, my client could sue for defamation; however, if the other party doesn’t have any money, it’s usually not worth pursuing.

If my client feels like they are the victim of cyberharassment or revenge porn, I refer them to the police. Cyberharassment and revenge porn are crimes and there is a lot more information that law enforcement can get from a website related to a criminal case than a lawyer can get access to during a civil lawsuit.

If you feel like your rights have been violated in an internet post, please contact a social media attorney in your community for assistance. If you want additional information about defamation, privacy, and the internet, please check out my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. You can always send me an email if you ever have questions, and please stay connected with me on Twitter, LinkedIn, Facebook, and YouTube.

Filed Under: Internet law Tagged With: , , , , , , , , , ,

Man Convicted of Running a Revenge Porn Site – What This Means For You

February 10, 2015 by Leave a Comment
Cell Block D by Sean Toyer from Flickr (Creative Commons License)

Cell Block D by Sean Toyer from Flickr (Creative Commons License)

Last week a San Diego court convicted 28 year-old Kevin Bollaert of 27 felony charges including identity theft and extortion for running multiple revenge porn websites. He could face up to 20 years in prison. Here’s how the sites worked: people would post nude photos of their former lovers (often with the victim’s name, city, and a link to their Facebook profile) and the victims could get the images removed, if they paid a fee. These sites have since been taken down.

Prosecutors described Bollaert’s sites as a business based on blackmail. At the trial, several victims testified that they were humiliated and faced other repercussions because their images were posted on these sites without their consent. This appears to be the first conviction for an operator of a revenge porn website, but hopefully it will not be the last. The article did not state whether any of the people who posted the revenge porn images in question have also faced criminal charges or civil lawsuits.

This case should serve as a warning to anyone who is operating a similar website. If you encourage people to post revenge porn and charging the people in the images to get them removed, there is now legal president that this is a type of extortion.

This is also a legal gray area. It’s one thing to create a platform where people can post images and stories on your site, activities that are often protected by the First Amendment and copyright laws; but the person creating the posts could cross the line into invasion of privacy, cyberharassment, and revenge porn depending on the material posted. Depending on the circumstances, the owner of the site could also face criminal or civil liability, but often times simply providing a platform is not enough to hold the site’s owner responsible for what other’s posts unless there is additional evidence that implicates them.

I’ve been getting more questions recently about people who are being threatened with revenge porn where the image or video hasn’t been posted yet. Sometimes I’m unsure if it’s a situation where the would-be poster is saying, “I’m going to post your nude photos online” or trying to use the images as way to manipulate the person by saying, “If you don’t do XYZ, I’m going to post your nude photos online.” I’m conversing with the Phoenix Police Department about this issue to better advise my clients who are in this situation.

If you suspect you’re the victim of revenge porn, call your local law enforcement agency. I do not blame the victims in these situations, but I caution people, especially young people to think before they create or send sexually explicit material. If any of this content is released on the internet, you have no control over who might see it, share it, download it and even if you can get the original removed, it could still be out there on other sites. When in doubt, don’t send naked selfies, take intimate photos in the bedroom, or create sex videos. If you’re thinking about posting revenge porn, don’t.

If you have questions or want to chat more about these issues, feel free to connect with me on Twitter, Facebook, LinkedIn, or you can send me an email.

Filed Under: Internet law Tagged With: , , , , , , ,

Questions People Ask About the Law, Photos, Sex Tapes, and Revenge Porn

July 15, 2014 by 21 Comments
Talk Shows on Mute by Katie Tegtmeyer from Flickr (Creative Commons License)

Talk Shows on Mute by Katie Tegtmeyer from Flickr (Creative Commons License)

The movie Sex Tape comes out this week. The previews look dumb, but I want to see it to examine the story from a legal perspective.

I’ve done a fair amount of research and writing about cyber harassment and “revenge porn.” I’m generally an advocate of personal responsibility and people not acting like asses, but judging by the terms people search for and end up on my site, a lot of people don’t share my views.

Here is a sample of the terms people have searched for and ended up on my site just in the last ninety days. (I corrected the spelling errors unless they were too funny not to leave in.)

I get a lot of hits on my site when people search for terms like this:

  • Can someone post your picture without permission
  • Can I sue someone for posting pictures of me online
  • If someone sends you a photo via phone can you post it online
  • Is it illegal to take a picture of someone and post it on the internet
  • Sex tape invasion of privacy
  • Expectation of privacy in sex stores
  • How to get a sex tape of you removed from a website?

I feel bad for these people:

  • What if someone wants to post your explicit pictures
  • Someone is threatening to put me on a porn site
  • My daughter videotaped herself doing some sexual things and now someone is threatening to put it on the internet what now
  • Someone posted nude pics of me, what type of lawyer do I need
  • Girlfriend took illegal pictures and put them on Facebook
  • If a site posts my porn video can I make them take it down
  • My ex-husband has intimate pictures of me what can I do
  • What is the legal steps you can take when someone is distributing a sex tape of you without your consent
  • My ex-boyfriend has nude pics of me. Can I legally do anything to make him delete them?
  • Can I get someone arrested for posting nude pictures of me online
  • Can you get someone arrested for distributing a sex tape?
  • Can you be classified as a sex offender for posting nudes on Facebook Arizona

These people kind of scare me because they either sound vindictive or clueless:

  • Wapsites to post my nude pics
  • Took photos of my ex naked while she was passed out
  • Can I post pics of my ex online
  • Can I post a naked pic on the internet without the consent of that person
  • If a person uploads sex videos in prone sites how much money will he get
  • Do you allow people to post nude pictures on your site I broke up with a guy
  • If u put wife nude video with name on internet can u get in trouble
  • Is giving out naked pictures of your ex- girlfriend breaking the law
  • Can you send xrated pics to get back at someone
  • Is it illegal to take a picture of someone and caption it with a degrading comment

These are just funny:

  • Can you sue a person for taking a photo of your butt in public
  • My ex sent me nude pics can I prosicute her
  • What to do to keep ur man after he saw ur nude pics sent to an ex
  • My boyfriend exposed my nude pictures. I will arrest him
  • Can you take pictures of people having public sex?
  • How to legally make fun of people on the internet
  • Why do people post stupid things online

Anyone who’s a regular reader knows that I constantly say “Think before you post.” When it comes to taking explicit photos or videos with your significant other, don’t do it unless you can handle the responsibility and have enough integrity to keep your private life private.

If you feel you’ve been the victim of a cyber-crime, contact the police in your community. If you want to chat about other issues related to cyberharassment and revenge porn, feel free to connect with me on Twitter, Facebook, YouTube, LinkedIn, or you can email me. You can also subscribe to the Carter Law Firm newsletter.
Please visit my homepage for more information about Carter Law Firm.

Filed Under: Internet law Tagged With: , , , , , ,

Arizona’s New Revenge Porn Law

May 13, 2014 by 4 Comments
8/52 My Shadow by Scarleth Marie from Flickr (Creative Commons License)

8/52 My Shadow by Scarleth Marie from Flickr (Creative Commons License)

Governor Brewer recently signed HB 2515, which made “revenge porn” a felony in Arizona. The official name for this law will be Unlawful Distribution of Private Images and it will be added to the Arizona criminal code as Arizona Revised Statute § 13-1425.

This new law, “Prohibits a person from intentionally disclosing, displaying, distributing, publishing, advertising or offering a photograph, videotape, film or digital recording of a person in a state of nudity or engaged in specific sexual activities if the person knows or should have known that the depicted person has not consented to the disclosure.” It also amends the domestic violence law (A.R.S. § 13-3601) by stating that revenge porn can be a type of domestic violence.

If you are arrested for violating this law, you will be charged with a Class 5 Felony (punishable by at least 6 months’ imprisonment and up to $150,000 fine), unless the person in the image or videos is recognizable, then you’ll be charged with a Class 4 Felony (punishable by at least 1 year in jail and up to $150,000 fine). When I first saw these punishments, I thought they were overly harsh, but then I noted that these are the same penalties for people who are found guilty of voyeurism in Arizona.

This law goes into effect on July 24, 2014. Arizona law enforcement has until then to develop their policies regarding how these crimes will be investigated and train their staff. Arizona already has a law against cyberharassment, so I suspect the policy for the new law will be similar to the procedures they have in place for this.

These are some of my thoughts about this new law:

  • I suspect the distribution of revenge porn applies to sending images or videos from person-to-person via text or email as well as widespread postings on websites. I can easily see a group of high school kids being accused of violating this law for passing around a naked selfie of one of their classmates that the victim meant for only their significant other to see. It could also be a felony just to show the image to one person.
  • Did you notice that the law applies to “offering” an image or video? I think that means you could be guilty even if you just offer to share someone else’s naked photo without the person’s consent, even if the potential recipient declines. These situations would probably be hard to prove unless the conversation was recorded or documented via text messages or email.

I’m curious to see how this law will impact existing revenge porn. If someone posted a photo of you on a revenge porn site this month and it’s still up when the law goes into effect in July, can the victim turn the alleged perpetrator in at that time with the claim that by staying on the internet, the crime is ongoing? Or will the victim have to wait until someone posts or sends the photo/video again after the law goes into effect to file a claim?

My rule of thumb is, “Think before you post.” Once an image or a message is sent, you can never fully take it back. Even if you have a revenge porn claim and the person is justly prosecuted, that image of you is still out there and you have no control over who’s seen it and it’s hard to chase down every place it might be posted to try to get it removed.

(Note: This video was made in March 2013, before the revenge porn law was passed, and not every state has a specific law about revenge porn.)

If you think you’ve been a victim of cyberharassment or revenge porn, please contact your local law enforcement agency.

If you want to learn more about revenge porn, please check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. It has an entire chapter dedicated to invasion of privacy. You can connected with me on Twitter, Facebook, YouTube, LinkedIn, or you can email me. You can also subscribe to the Carter Law Firm newsletter.
Please visit my homepage for more information about Carter Law Firm.

Filed Under: Cyberbullying & Cyberharassment, Internet law Tagged With: , , , , , , ,

Arizona may Pass a Law Against Revenge Porn

February 11, 2014 by 3 Comments
Pro Juventute Aufklärungskampagne ‚Sexting’ Themenbild_05 by Pro Juventute from Flickr (Creative Commons License)

Pro Juventute Aufklärungskampagne ‚Sexting’ Themenbild_05 by Pro Juventute from Flickr (Creative Commons License)

The Arizona legislature is considering a bill that would make “revenge porn” a felony. Revenge porn is the term commonly used when a person posts nude, often sexually explicit, photos or videos of another person on the internet without consent, likely after a bad break up.

House Bill 2515 would prohibit a “person from knowingly disclosing, displaying, distributing, publishing, advertising or offering a photograph, videotape or film or digital recording or other reproduction of a person engaged in a sexual act or in a state of nudity without that person’s written consent.”

If this bill becomes a law as it’s written, violating this law would be a Class 5 Felony (punishable by at least 6 months’ imprisonment and up to $150,000 fine), unless the person in the images is recognizable, then it would be a Class 4 Felony (punishable by at least 1 year in jail and up to $150,000 fine).

Arizona already has a law on the books about cyberharassment. This law is broadly written and requires the perpetrator to intend “to terrify, intimidate, threaten or harass a specific person or persons.” This new revenge porn law doesn’t require a particular intent, just the knowledge that the perpetrator knew they were posting sexually explicit material without the subject’s consent. It only looks at their behavior, not their goal regarding the alleged victim.

This bill has a long way to go before it becomes a law, and it has some opponents. Rep. Eddie Farnsworth is reported to oppose the law because people in the photos and videos often send the original images of themselves via “sexting” and they may be partially responsible for the continued distribution of the images.

“Once you send it out, I think there’s some difficulty in claiming that you have a right to privacy,” Farnsworth said. “You sent it. It’s on the entire system.”

What do you think about this bill – Should states have specific laws about revenge porn? Do you think the punishment should be up to a year in jail if the person in the photos or video can be identified?

I constantly remind people, “Think before you post.” Even if this law passes, victims’ lives could still be destroyed by revenge porn. You don’t know who is going to see it or where it might end up. If you can’t handle the responsibility of taking intimate photos  or videos, don’t do it.

If you want to chat more about revenge porn and this proposed law, please check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. It has an entire chapter dedicated to invasion of privacy. You can connected with me on Twitter, Facebook, YouTube, LinkedIn, or you can email me. You can also subscribe to the Carter Law Firm newsletter.
Please visit my homepage for more information about Carter Law Firm.

Filed Under: Cyberbullying & Cyberharassment, Internet law, Legalities of Blogging Tagged With: , , , , , , , , , ,

The Legal Side of Revenge Porn

October 3, 2013 by Leave a Comment
Untitled by seanmcgrath from Flickr (Creative Commons License)

Untitled by seanmcgrath from Flickr (Creative Commons License)

One of the downsides of technology is most people have the ability to create intimate photos and videos with their smartphones which is now leading to an increase in “revenge porn.” For those of you who don’t know, revenge porn is created when a person takes the photos or videos from their prior romantic relationship and posts them on the internet to humiliate their ex-partner. I think posting revenge porn is juvenile and disrespectful, but there are also legal implications in these situations.

Copyright Infringement
If you take an intimate photo of yourself and send it to your partner, you own the copyright in that image and therefore have the exclusive right to copy and distribute it. If your ex posts it on a website or shares it with someone without your permission, they are likely committing copyright infringement.  If you find a “selfie” photo of yourself on the internet that was posted without your consent, you may be able to get it removed using the Digital Millennium Copyright Act by sending a takedown notice.

Cyberharassment
Arizona has state laws against cyberharassment and against harassing someone via electronic communications, both of which are punishable by up to six months in jail and up to $2,500 fine. Other states have similar laws. If the person who posted the photos or videos did it with the intent to harass or harm you, the poster may have violated one or both of these laws.

Invasion of Privacy and other Civil Violations
Some people who are victims of a revenge porn situation are interested in a civil lawsuit. They may want to consult a lawyer to determine if the person who posted the pictures or videos likely violated your state’s laws related to invasion of privacy, infliction of emotional distress, and, if they’re making money off of you, the commercialization of your image. These are state law issues so you’d have to have a lawyer compare the facts of your case against your state’s laws.

Challenges in these Cases
One of the challenges in these cases is proving that your ex was the person who posted the photos or videos. The IP address will tell us from where they were posted so if they posted from home, that’s a good indicator that your ex did it. However, some people try to cover their tracks by using public Wi-Fi but there are other ways to gather evidence about the person who posted your intimate photos on the internet to discern their identity. There is always a chance that your ex isn’t the perpetrator but someone he/she shared your photos with (which could be another case against your ex)or a person who got access to your ex’s phone or computer without consent.

Another challenge in these cases is for people pursuing a civil lawsuit, you may win the case by you might not be able to collect if the defendant doesn’t have any money. The defendant doesn’t have any money, you might have a hard time finding a lawyer who will take your case unless you pay for your legal fees.

If you want to watch me jump on my soapbox about revenge porn, I made a video about it earlier this year.

If you are in a revenge porn situation, talk with the police and a lawyer who can discuss all your options. If you want more information about what you can/can’t post on the internet, please check out my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed.

You can connect with me on Twitter, Google+, Facebook, YouTube, LinkedIn, or you can email me.
You can also subscribe to the Carter Law Firm newsletter.
Please visit my homepage for more information about Carter Law Firm.

Filed Under: Cyberbullying & Cyberharassment, Internet law Tagged With: , , , , , , , , , , ,

Using the Court of Public Opinion to Stop Cyberharassment

February 28, 2013 by Leave a Comment
and bullhorns by mikeinlondon from Flickr

and bullhorns by mikeinlondon from Flickr

I recently taught a seminar for the State Bar of Arizona E-Commerce and Technology section. I’m a big believer that if you’re cyberharassed, cyberbullied, or cyberstalked online that you should report it – first to the website or service where it’s occurring and then to the police if the person continues to misbehave despite being told to knock it off or if the website or service doesn’t do anything about it. She said, in her case, law enforcement wanted to pass the buck to another agency than deal with the problem themselves.

That’s discouraging. What are you supposed to do if you’re being harassed and the people whose job it is to stop this behavior are ignoring you?

My first thought was, “The squeaky wheel gets the grease.” If you keep reporting the problem, the powers that be might realize that doing their job is the best course of action because you’re not going to go away until they do. You might have to go above their heads and report them to their superiors to make this happen. A nasty letter from an attorney written on your behalf might do the trick too.

If that doesn’t work or if you’re in a situation that needs immediate attention, consider turning to the court of public opinion and publicly call your harasser/bully for their bad behavior. Use your social network to rally support for your situation. Contact the media and try to get them to run a story about it. If there’s enough public outcry, maybe the powers that be will do their jobs or the person who’s harassing you will leave you alone.

If you want to turn to the media or social media, my one word of caution is to mindful about what you say. Resist the urge to exaggerate – it might cross the line into the realm of defamation or false light. Instead stick to the facts, your feelings about the facts, and what you want to happen as a result. If you use the media or the public to try to make a change, you have to tell them what you want whether it’s contacting a certain government official, signing a petition, boycotting a business, etc. Don’t tell people to harass the person who is harassing you; that might be soliciting a crime

Be sure to keep copious records so you can back up your facts with evidence if you need to defend yourself. Some people may attack you just to try to shut you up.

My final word on this topic is if you’re going to try to use the media or the court of public opinion to resolve a problem, you’re going to have to grow a thick skin. Some people are vicious and will call you out for calling out someone else. Surround yourself with a strong group of supporters to bolster your spirits when the haters come after you.

If you’re being cyberharassed, consult an attorney in your community to discuss the best strategy to make it stop. You can connect with me via Twitter, Google+, Facebook, YouTube, and LinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.

Filed Under: Cyberbullying & Cyberharassment, Internet law Tagged With: , , , , , , , , ,

Arizona Cyberharassment & Cyberstalking Laws

January 10, 2013 by 27 Comments
It's scary to join an open source project by opensourceway from Flickr

It’s scary to join an open source project by opensourceway from Flickr

When I was planning out my year, I learned that January is National Stalking Awareness month. This inspired me to look up the laws on cyberstalking and cyberharassment in Arizona.

When I think about stalking, I think about the guy who follows you from the shadows and hides in the bushes and watches you with binoculars. They always know where you are and show up wherever you go “by coincidence.” When we first started acknowledging stalking as a crime, the perpetrator had to be within physical proximity to you. In person stalking is still an issue and now we have to worry about cyberstalking too – people tracking you wherever you go via the internet and using your posts against you to know where you’re going and to harass you in person and online. Some of these perpetrators do things like attach a GPS to your car so they can track your movements. Creepy!

Stalking and harassment are different, but there’s often overlap between the two. I think when you’re being stalked, you’re also being harassed once you know you have a stalker but the reverse isn’t always true. You can be harassed without being stalked. These crimes are state law crimes, so the definitions may be different depending on where you live. I recommend you check your state’s laws to make sure that they’ve been updated to include cyberstalking and cyberharassment.

Here are the laws in Arizona:

  • Cyberstalking: Intentionally or knowingly engaging in conduct that would cause a reasonable person to fear for their safety or their immediate family’s safety, including the fear of death. (Class 5 Felony); Penalty: 9 months in jail and up to a $150,000 fine
  • Cyberharassment: Communicating with a person with the intent to harass them or with the knowledge that the person was being harassed. (Class 1 Misdemeanor); Penalty: Up to 6 months in jail and up to a $2,500 fine

There’s also a separate law for harassing someone via electronic communications. The definition and penalty is the same as cyberharassment except that it specifies that it applies to harassing, intimidating, terrifying, and/or threatening someone. It seems redundant.

And that’s just the criminal law side. If you cyberstalk or cyberharass someone, you may also be sued for damages in civil court.

On top of that, you may get in trouble with the company who provided you the means to stalk or harass the person. If you do it from your work computer, you might be fired. If you do it via your school’s network, you could be suspended or expelled. If you do it from one of your social media accounts, you can be kicked off the site.

So what are the take-home lessons?

  • If you’re mad at someone or want to give them a hard time, think twice before you begin your course of action. It may not take much to cross the line into cyberharassment. The consequences might be way worse than you think.
  • If you’re being cyberharassed or cyberstalked, report it – to law enforcement, to the site or company that’s facilitating it, and possibly call a lawyer. Cyberharassment sucks and you don’t have to put up with it.

You can connect with me via Twitter, Google+, Facebook, and LinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.

Filed Under: Cyberbullying & Cyberharassment Tagged With: , , , , , , , ,

Is It Illegal to Tweet Lies?

November 8, 2012 by 4 Comments

Last week during Hurricane Sandy, many of us turned to Twitter for up-to-the-minute updates about the storm. An anonymous person using the handle @ComfortablySmug made several tweets.

  • BREAKING: Con Edison has begun shutting down all power in Manhattan
  • BREAKING: Governor Cuomo is trapped in Manhattan. Has been taken to a secure shelter
  • BREAKING: Confirmed flooding on NYSE. The trading floor is flooded under more than 3 feet of water.

It was later revealed that the information was false, but not before these tweets were retweeted more than 500 times according to reports.

Buzzfeed’s Jack Stuef investigated the situation and determined that the anonymous tweeter was Shashank Tripathi, a campaign manager for Republican congressional candidate Christopher Wight. Tripathi has since resigned from his position and tweeted an apology for posting inaccurate information. That was his latest tweet from that account.

The New York District Attorney’s Office was asked to pursue criminal charges against Tripathi for his irresponsible tweeting. It will be interesting to see if he’s charged.

What Might He Be Charged With?
In many situations, it’s not illegal to lie unless you’re entering realms like fraud or identity theft. I did some digging in the Arizona criminal code and I could see a prosecutor making an argument that a person who posts inaccurate information during an emergency could be charged with electronic harassment, falsely reporting an emergency or causing public panic, creating a hoax, or possibly something along the lines of disorderly conduct.

Some of these crimes, like electronic harassment, require a victim and Tripathi didn’t appear to have a target. I wonder if issues like this might make the prosecution’s job harder.

What About Tripathi’s Right to be Anonymous?
Yes, the First Amendment protects your right to free speech, including your right to speak anonymously. It does not guarantee your anonymity. If you want to be anonymous, you have the responsibility of not making it easy for others to figure out who you are. Apparently @ComfortablySmug was unmasked because he posted censored pictures of himself and the uncensored version was easily discovered and revealed his identity.

If he committed a crime, his right to be anonymous also went out the window.

What do you think should happen to Shashank Tripathi? Should he be charged with a crime for tweeting lies about Hurricane Sandy? Please share your opinion as a comment below.

If you want to learn more about your online dos and don’ts, check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed.
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