On Oct. 1, “sexual cyberharassment” will become illegal in the Sunshine State. In May, Florida became the 16th state to enact a law aimed at criminalizing the nonconsensual posting of intimate media. Critics of Florida’s law point to the statute’s limitations. The statute does not cover the dissemination of sexually explicit images and videos by email, text message, or peer-to-peer networks. Criminal activity under the statute requires the posting of personal identifying information along with a sexually explicit image. And the statute contains a requirement that the perpetrator intended to cause emotional distress.
Supporters of Florida’s sexual cyberharassment law continue to focus on its positive attributes. The law makes a first offense of the nonconsensual posting of sexually explicit media on a website a first-degree misdemeanor, punishable by up to one year in jail and a $1,000 fine. The law makes any subsequent offense a third-degree felony, punishable by up to five years in prison and a $5,000 fine. Even with its limitations, this law is not just good, it’s great.
Florida Statute Section 784.049 criminalizes what is colloquially known as “revenge porn,” which is somewhat of a misnomer since it often involves material that is neither vengeful nor pornography. Many proponents expect the law to deter individuals from engaging in horrific campaigns of online harassment. Others think the provisions authorizing private causes of action and the recovery of attorney’s fees will encourage more attorneys to offer pro bono legal representation to victims who desperately need help.
With the law’s effective date approaching, Florida’s new law raises issues about corporate social responsibility. Florida businesses with an online presence should take a moment to think about the existence and effects of cyberharassment on their operations and what companies can do to help victims.
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Although businesses do not necessarily face liability, they often are involved in cases of online harassment. Perpetrators often post a victim’s nude photographs to his or her employer’s social media profile. Offenders also set up separate blogs or websites to post explicit and defamatory content about the victim, along with information about where the victim works and hyperlinks to that company’s website.
Revenge porn traumatizes victims and disrupts businesses. Sometimes harassment continues when victims are taunted by their own work colleagues. Victims frequently are fired. And victims who are on the job hunt discover that potential employers simply cannot look past the nude images that have gone viral.
Companies should proactively plan for situations involving online harassment of employees. How will the company forensically preserve the material in the case that law enforcement is able to prosecute the offender, or if the victim chooses to bring a civil lawsuit? And what about quickly removing the offending content from the Internet after preservation?
As Florida prepares to enforce its new law, businesses should think about corporate social responsibility and should do their part to help victims of sexual cyberharassment. After all, it’s the responsible thing to do.
Elisa D’Amico is a partner in the Miami office of K&L Gates LLP. She is the co-founder of the firm’s Cyber Civil Rights Legal Project. For more information about the Cyber Civil Rights Legal Project, please visit cyberrightsproject.com.
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