How to Fight Revenge Porn
But one legal argument has somehow failed to make a major appearance in revenge-porn cases: confidentiality. Broadly speaking, to confide is “to give to the care or protection of another,” and it is often the defining trait of explicit media shared between romantic partners. Simply put, explicit images and videos are unlikely to be created or shared with an intimate without some expectation or implication of confidence. This reality has been acknowledged but underutilized in the dominant narrative on non-consensual pornography. In contrast to new rights that would be created by proposed “anti-revenge porn” laws, confidentiality is already a well-established legal concept. It is older than all of the privacy torts and statutes in America.
Nevertheless, the concept has languished in law and our conversations about social relationships. Arguably, there are several reasons for this. Confidentiality agreements are socially awkward and provide for limited damages. Traditionally confidential relationships are rare, usually being limited to professional relationships like those between doctors and patients and attorneys and clients. Perhaps most significantly, confidentiality law doesn’t directly restrict the most injurious actor in the debate — websites. While romantic partners who receive explicit materials might be prohibited from further disclosure, websites and other third-party recipients are not bound by the same rules because they presumably have no relationship with the person depicted in the media.
But one of the most likely reasons confidentiality law has not played a larger role in the modern privacy debate is that most of our social communications are not conditioned upon an express or even implied promise of confidentiality. It is difficult to imagine, though, a more illustrative context of implied confidences than explicit material shared between intimates. Indeed, this argument has been made for some time now. Yet confidentiality law has remained a relatively limited and insignificant remedy in the larger patchwork of privacy jurisprudence.