When Revenge Is Not So “Sweet”: The Wages of “Revenge Porn” under Florida’s New Cyber Harassment Statute

October 28, 2015

The internet has proven to be a boon for commerce and, sadly, yet another vehicle for some to lash out and victimize others. An example of the latter has been the spate of postings of previously private photos and videos of former loved ones either naked or engaged in sexual activity. The embarrassment for those depicted is immediate and, given the nature of the worldwide web, can be a rather permanent memorial of one person’s malice against another.

As of October 1, 2015, Florida Statute 784.049 makes “sexual cyberharassment” a misdemeanor of the first degree, punishable by up to a year in prison and $1,000 fine. A second or subsequent offense is a felony with the potential for five years imprisonment and a five thousand dollar fine. The law defines “sexually cyber harass” as the publishing of a sexually-explicit image of a person that contains or conveys the personal identification information of the depicted person to an Internet website without the depicted person’s consent, for no legitimate purpose, with the intent of causing substantial emotional distress to the depicted person. The statute contains the Legislature’s determination that the existence of such images on Internet websites causes the persons depicted in such images significant psychological harm.

The statute also creates a private cause of action, allowing the person whose image is published to obtain injunctive relief, monetary damages (to include $5,000 or actual damages incurred as a result of a violation, whichever is greater), and reasonable attorney fees and costs. Under the law, a violation is committed within Florida if any conduct that is an element of the offense, or any harm to the depicted person resulting from the offense, occurs within the state. Both the criminal offense and the new private cause of action require the offender to possess the specific intent to cause substantial emotional distress to the depicted person.

Policyholders who seek coverage for the monetary consequences of a violation of the statute under the “personal and advertising injury” or general liability coverage in their insurance’ policies are likely to find themselves looking elsewhere for funds. Both homeowners and CGL policies contain an “expected or intended acts” exclusion. The exclusion precludes coverage for “Bodily Injury” or “property damage”’ that was expected or intended from the standpoint of the insured. Florida Courts have adopted the majority rule that the intentional injury exclusion applies where the insured acts with the specific intent to cause harm to a third party, rather than the intent to simply perform the act that led to the damage or injury. Phoenix Ins. Co. v. Helton, 298 So.2d 177, 181 (Fla. 1st DCA 1974), cert. discharged, 330 So.2d 724 (Fla.1976). A successful lawsuit brought under Florida statute 784.049 for sexual cyberharassment will require the plaintiff to prove the intent was to cause “substantial emotional distress to the depicted person.” If proven, that intent will bar coverage under the intentional injury exclusion of the insured’s policy.

For any further questions, please contact John Garaffa.