[UPDATE: In response to this article and my notification to NCLS.org that they were linking to an unpassed version of the Hawaiian law, Sarah Jeong corrected her Forbes article, as did Amanda Levendowski, her blog. Both still bemoan the Hawaiian law’s lack of a “newsworthy exception.” Interestingly, this is an exception taken straight from the model laws drafted by Professor Mary Anne Franks and adopted by a growing number of states. So it’s movement in the right direction if Jeong, Levendowski, and those who promoted their articles are adopting this rhetoric. From a logic perspective, though, a newsworthy exception is far less necessary when the laws have an intent to harm requirement. Gawker, Sydney Leathers, US Airways re-tweeters, any online or offline news outlet or aggregator, second-wave distributor, email forwarder, etc. can claim lack of intent to harm. And it doesn’t really matter what their intent was — newsworthiness, gossipmongering, leaning on the re-tweet button — as long as it wasn’t to harm.]
Correct me if I’m wrong, but in her Forbes article Sarah Jeong linked, quoted, and premised an entire article upon the wrong version of Hawaii’s new Revenge Porn law. Creating unnecessary alarmism, she erroneously claims that Gawker broke Hawaiian law by linking to the John Schindler dickpic (wonky-dong?) that went viral on Twitter courtesy of the original recipient of this senior intelligence analyst’s nude photo. Had Ms. Jeong discussed the law that actually passed — rather than an earlier version – she’d have a lot less of a story and fewer first amendment absolutists sweating like pigs on a spit.
The actual law requires that the perpetrator of nonconsensual porn distribution have the intent to harm the subject. For better or worse, that pretty much shields Gawker. What intent can we attribute to Gawker other fiending for clickbait?
Hawaii Revised Statutes Section 711-1110.9 Violation of Privacy in the First Degree is below:
(b) The person knowingly discloses an image or video of another identifiable person either in the nude, as defined in section 712–1210, or engaging in sexual conduct, as defined in section 712–1210, without the consent of the depicted person, with intent to harm substantially the depicted person with respect to that person’s health, safety, business, calling, career, financial condition, reputation, or personal relationships; provided that:
(i) This paragraph shall not apply to images or videos of the depicted person made:(A) When the person was voluntarily nude in public or voluntarily engaging in sexual conduct in public; or (B) Pursuant to a voluntary commercial transaction; and
(ii) Nothing in this paragraph shall be construed to impose liability on a provider of “electronic communication service” or “remote computing service” as those terms are defined in section 803–41, for an image or video disclosed through the electronic communication service or remote computing service by another person.
In the future, I invite you to seek accurate information from www.endrevengeporn.org. Or check out my constantly updated links to passed RP Statutes here.
Mahalo.