No Revenge Porn Liability for X Based on X User’s Alleged Illegal Posting of Commercial Porn Depicting Plaintiff

From today’s order by Chief Judge Reed O’Connor (N.D. Tex.) in Doe v. X Corp.:

[The federal] Non-Consensual Intimate Image (“NCII”) disclosure prohibition, colloquially known as the “revenge porn statute[,]” … prohibits anyone from recklessly or knowingly disclosing another’s “intimate visual depiction … without the consent of the individual” and imposes statutory damages of $150,000 for violations. It excludes from liability those disclosures containing “commercial pornographic content, unless that content was produced by force, fraud, misrepresentation, or coercion of the depicted individual.” …

Plaintiff John Doe (“Plaintiff”) creates posts on OnlyFans containing sexually explicit content. OnlyFans is a subscription-based platform on which creators post content for subscribers to view. The OnlyFans terms of service prohibit any user from taking and republishing, or otherwise reproducing, content from its site without permission. Plaintiff has also created pornography produced by Falcon Studios, SayUncle, Pride Studios, and ASG Max. Each of these studios grants viewers of its commercial pornography a limited license for viewing that does not permit republishing or otherwise reproducing images on a website or social media platform….

A third party copied commercial pornographic content from Plaintiff’s OnlyFans and studio-based productions and uploaded it to X without his consent, violating the OnlyFans terms and conditions and the studios’ licensing agreements. Plaintiff contends that the person who copied his images off these accounts “misrepresented [his or her] willingness to comply with the acceptable use policy and terms of service” on his platforms and thus “fraudulently gained access to [his] intimate visual depictions.” He alleges that the third party reposted the content to X and that X disclosed it to xAI. Accordingly, Plaintiff asserts the third party “produced” the stolen images by fraud and misrepresentation. He also alleges he informed X that “he did not consent to disclosure of his intimate images” on X, including by X to xAI. Therefore, he claims X has disclosed his commercial pornographic content which was “produced by fraud” or “misrepresentation” without his consent in violation of Section 6851….

Here’s the heart of the analysis (though the full opinion also deals with some other complicated statutory arguments):

The text and structure of § 6851(b) makes clear the statute protects the privacy interest of individuals who intend to maintain control over intimate images and prevent their public dissemination. The general prohibition targets the dissemination of images the individual did not intend for public or commercial sharing. Consistent with that focus, the statute expressly excludes commercial pornographic content—material the individual created for public distribution or monetization rather than for private use.

The statute’s protection of commercial pornographic content when that content is produced by “force, fraud, misrepresentation, or coercion” reinforce its focus on voluntarily waiver of privacy. In such circumstances, the individual has not effectively consented to placing his or her intimate images into the marketplace. Hence, the statute’s structure reflects that liability turns on whether the depicted individual intended to keep his or her images private.

Under Plaintiff’s theory, however, any unlicensed and nonconsensual dissemination of commercial pornography to the non-subscribing public would be a production of an intimate image by fraud, thereby bringing that content within the statute’s protection. That reading would render meaningless the commercial-pornography exclusion….

Section 230 also bars Plaintiff’s claims. Section 230 provides: “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This provision grants “broad immunity … to Web-based service providers for all claims stemming from their publication of information created by third parties.” “Courts have construed the immunity provisions in § 230 broadly in all cases arising from the publication of user-generated content.”

Section 230 contains an intellectual property exception, which provides: “nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.” This provision is “construed narrowly” and applies only to claims arising from a law “directly” “pertaining to an established intellectual property right under federal law, like those inherent in a patent, copyright, or trademark.”

Plaintiff argues that Section 230 does not provide X or xAI with immunity because the posts at issue contain intellectual property—i.e., the intimate images. But Plaintiff’s argument misapprehends the standard for Section 230’s intellectual property exception. The exception applies only when the claims arise from a law directly implicating intellectual property rights, not merely when intellectual property is involved in the claim. § 230(e)(2). And the statute under which Plaintiff sues—§ 6851—is not an intellectual property law. Rather, it is concerned with “whether the depicted individual consented to a specific disclosure of an intimate visual depiction—regardless who holds the copyright to the image.” Thus, § 6851 creates a privacy-based tort right of action, not an intellectual-property based one.

Judd E. Stone II and Noah Schottenstein (Stone Hilton PLLC) represent X.