Cummings said she posted the picture herself in order to get ahead of people attempting to extort her using a screenshot that she had accidentally uploaded to Instagram and then deleted months previously. On Facebook, she shared a screen cap of a private message in which someone demanded to know how much money he or she could get if they didn’t share the photo.
Her decision has been called defiant, and celebrities have flocked to offer their support. But the very fact that Cummings — like other famous women before her — felt forced to take this measure indicates the limited options available to those in their position.
Cummings’ experience ties into a wider trend, which is seeing people’s private images being used against them online in sometimes sinister and ruinous ways. In the case of celebrities, scammers often attempt to blackmail their victims, using the threat of publishing their image. Sometimes, as was the case in 2014 when dozens of celebrities’ images were leaked online by hackers, the photos, which may not always be real, are posted without warning. This is known as a form of revenge porn.
Revenge porn is the distribution of sexually explicit images or video without the subject’s permission. Victims may be unaware that their image is online, or, as is often the case in abusive relationships, someone might be actively using the image to cause its subject distress. Though campaigners like journalist Darieth Chisolm, herself a victim of revenge porn, and politicians like US Senator Kamala Harris have been vocal about the need for better resources for victims, and tougher legislation, revenge porn remains challenging to police, and onerous to prosecute.
Most women, who make up the vast majority of revenge porn victims, have no such platform, no thousands of dollars spare to sue, and no fans or media outlets to back them up. And as long as their image is online, it can end up in the possession of strangers who can keep it forever.
Across the US, sites where revenge porn content is shared shoulder little responsibility for it. They are protected by section 230 of the Communications Decency Act of 1996 (CDA), which states that they are not treated as publishers of any third party content that they host. As a result, they are often able to sidestep blame. Section 230 was made as an amendment to the CDA, and does not provide protection from legal responsibility for some criminal acts, like posting child pornography or violating someone’s intellectual property.
In 2017, New Yorker Matthew Herrick was allegedly harassed by a scorned ex, who according to the complaint Herrick filed, posted a series of fake profiles using Herrick’s photo on the gay dating app Grindr, leading to men stalking Herrick both at his home and at work. The case was dismissed, thanks to the CDA. “Grindr had enabled and facilitated Matthew’s abuse,” Herrick’s lawyer Carrie Goldberg told the Guardian. “They could have stopped the strangers showing up at Matthew’s door. But legally they didn’t have to do anything to keep Matthew safe.” Also in 2017, Herricks’ ex denied to CNN setting up fake accounts but declined to comment further.
In a court filing, Grindr stated that it is a “safe space” for gay, bisexual, trans, and queer people to connect and to provide users with flexibility and discretion in their dating and sex lives. It asks for very little information and does not verify profiles. Regarding the use of its geolocation technology, which facilitated Herrick’s stalkers, one of Grindr’s attorneys said in court: “The geolocation is a neutral system,” adding: “It’s open to good users and to bad users.” A court decided in Grindr’s favor and earlier this month, Goldberg appealed the decision to the Supreme Court.
One avenue open to victims when their image is distributed against their will is copyright law. According to the Digital Millennium Copyright Act, passed in 1998, copyright of a photo belongs to whoever took it. If someone turns another person’s selfie into revenge porn by posting it online, the person who took the selfie can sue for breach of copyright, and possibly have a greater chance of a successful outcome than they might by pursuing a criminal case. This of course assumes that the victim has the funds to do so, and host platforms can be slow to remove images.
In 2014, hackers famously posted celebrities’ private photos on the now-infamous online forum 4chan. They were swiftly shared to a dedicated Reddit community called “TheFappening.” It took Reddit a full week to shut down the community, by which point thousands of users had already downloaded the images. The hackers who have so far been successfully prosecuted were found guilty of felony hacking, and violating the Computer Fraud and Abuse act. It was phishing for content, rather than the distribution of the images, which landed their convictions.
Even new laws are lagging behind when it comes to criminalizing revenge porn. New York became the 46th state to do so in February, but because the new legislation defines the spread of nonconsensual pornography as harrassment, it does not apply unless a defendant has clearly acted with “the intent to cause harm.” Because much nonconsensual pornography gets shared as entertainment, rather than with the “explicit intent to harm or embarrass,” the new legislation sidesteps the majority of perpetrators. There is no federal law that addresses revenge porn, and so many cases slip through the cracks.
Earlier this year Lauren Miranda, a middle school teacher, lost her job after a topless photo she had taken and sent to her boyfriend in 2016 was reportedly obtained by a teenage boy at her school. Miranda was called into her principal’s office, where her photo was brought up on a computer screen in front of several male administrators. The school board fired her.
Miranda, who according to a teacher observation report was viewed as an”outstanding” teacher, is suing for $3 million damages, or her job back. The case is pending; the school district has declined to discuss it, as it does not comment on active litigation.
She has emphasized that she is not ashamed of her photo. But it has now been seen by the school board and media, and the fact of its existence is dictating how she spends her time, energy and money. It may be temporary, but one image has changed the course of her career, and her life.
It is not only the sharing of personal images which wreaks havoc on victims’ lives. It is the behavior which can come with it, and the responses the images provoke. Journalist Darieth Chisolm points out in her TED talk on the subject that her ex’s threats regarding the photos he had taken of her without her permission were part of a pattern of abuse which involved threats and coercive control both during and after their relationship. Darieth Chisolm won her case in Jamaican court. Her ex pleaded guilty to three counts of malicious communications, which falls under Jamaica’s Cybercrimes Act.
And on the receiving end, anyone who surfs the internet is by now used to commenting on, or sharing freely, whatever they find on it.
Disney star Bella Thorne tweeted her own nude photos in June. In her accompanying statement
, she said she had felt “gross” and “watched” knowing that a stranger had her pictures. Under the tweet, which included her photos, are hundreds of replies. Many are sexually explicit overtures from men, whose attention evidently did not extend to her statement about how the images made her feel.
Whether perpetrators are adequately penalized or not, or victims have the resources to bring a civil case and sue or not, the damage wrought by revenge porn has lasting and devastating effects. Revenge porn can lead to loss of jobs, ruined relationships, lasting mental and emotional damage, and suicidal thoughts. Until the law catches up with those who distribute revenge porn, and platforms are made to assume responsibility for the content they host, people like Whitney Cummings will remain obliged to take matters into their own hands. Whether they choose to do so litigiously, or by using their public platform, it is not enough.