Errors Involving Posting of Escort’s Photos by Escort Service Aren’t Subject to Federal Nonconsensual Porn Statute

From Doe v. T.T., II, Inc., decided yesterday by Judge Dale Kimball (D. Utah.):

Defendant T.T. … is an escort service … When Plaintiff agreed to work as an escort in conjunction with Defendants, she signed an agreement indicating that her services as an escort would involve nudity in the presence of customers….

As part of her intake process, the parties discussed that she would need to engage in some advertisement activity directed at attracting male customers and that this would also include nudity. Defendants maintain a website advertising their services and providing photographs of their escorts. The photographs are sexually suggestive but do not generally include nudity….

Plaintiff provided photographs that included some nudity, but the nude photographs did not show her face. Defendants used the photographs Plaintiff provided to them in advertisements. Plaintiff also provided Defendants with some facial shots, but they agreed that they would not be displayed with photographs containing nudity.

In connection with her work as an escort for Defendants, Plaintiff used an assumed name. The photographs they used in advertising used that assumed name. Defendants did not use or provide information as to Plaintiff’s actual name or identity. As part of its advertising for its escorts, Defendants supplied photographs to certain websites featuring sexy, nude, or semi-nude models….

Plaintiff does not claim that Defendants created ads for her without her permission. However, Plaintiff alleges that she was there was one posting including a series of photographs involving nudity that also included a photograph including her face. Plaintiff did not want photographs including her face posted with other nude photographs. She contacted Defendant about the posting and they remedied the situation. She claims that the erroneous posting was up for approximately two hours.

Defendants posted the ads between the time Plaintiff started working with them, approximately August 2024, and when she resigned in October 2024. After Plaintiff quit, Defendant erased her files….

Defendants state that they complied with all of Plaintiff’s requests, with the exception of the posting including her face that was posted for less than 2 hours. That posting was a mistake and they took it down. Plaintiff quit in October 2024, and she asked that the pictures be taken down. Defendant acknowledges that it took them several days to take them down but it was in their own business interest to have them removed timely as well….

Plaintiff sued, “alleging a violation of 15 U.S.C. § 6851 for disclosing intimate images of her on the internet without her consent”; the statute provides “$150,000 in liquidated damages” plus “reasonable attorney’s fees” to

an individual whose intimate visual depiction is disclosed … without the consent of the individual, where such disclosure was made by a person who knows that, or recklessly disregards whether, the individual has not consented to such disclosure, may bring a civil action against that person

but has exceptions for, among other things, “commercial pornographic content, unless that content was produced by force, fraud, misrepresentation, or coercion of the depicted individual,” or “a disclosure reasonably intended to assist the identifiable individual.”

The court concluded that the statute didn’t apply here, because “The photographs at issue fall within the exceptions for commercial pornographic content or a disclosure reasonably intended to assist the identifiable individual”:

Plaintiff does not dispute that she worked as an escort for Defendants and that the photographs were posted and shared with clients to advertise her services and promote her business…. Defendants did not distribute any photographs of Plaintiff other than the ones she voluntarily provided to them for those purposes….

The parties’ disputes regarding the disclosures boil down to Defendants’ mistaken post that included a photograph depicting Plaintiff’s face in a series of other photographs including nudity and to whether Defendants[] timely removed her photographs when she resigned from working with Defendants. When Plaintiff resigned, Defendants claim that they took down her photographs within a few days, which it claims is a reasonable amount of time. Plaintiff, however, claims that forty-eight hours would have been a reasonable amount of time….

Plaintiff argues that Defendants were posting the photographs to assist their own business, but by doing so, they were assisting Plaintiff in her own business as well. The posts were mutually beneficial to both parties’ businesses. Plaintiff continued to advertise her services on her own on at least one internet site, using the same photographs she had provided to Defendants. The photographs were images Plaintiff gave to Defendant for such purposes. They were not produced by fraud, force, misrepresentation, or coercion.

The mistaken disclosure of a photograph with Plaintiff’s face was quickly rectified and the post was reasonably intended to assist Plaintiff’s business. Defendants are not arguing that Plaintiff lost her right to consent to the photos[‘] distribution. However, they assert that the mistaken distribution that showed her face needs to be considered in the broader business arrangement the parties had….

Plaintiff voluntarily entered an agreement to make money off her images, and she voluntarily supplied those images to Defendants to promote her business venture. The statute was not intended to provide liquidated damages for any mistake made in such a business relationship….