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Does New Hampshire Protect Victims of Revenge Porn?

A victim of revenge porn should first contact local police.

New Hampshire’s “revenge porn” law makes it a criminal offense to disseminate videos and photos of another that are sexual in nature without the consent of the person(s) depicted in the videos or photos. See NH RSA 644:9.

More specifically, New Hampshire’s law provides that a person commits nonconsensual dissemination of private sexual images by:

  1. purposely, and with the intent to harass, intimidate, threaten, or coerce the depicted person, disseminating an image of such person who is identifiable from the image and who is engaged in a sexual act or whose intimate parts are exposed;
  2. where the person disseminating the image has obtained it under circumstances in which a reasonable person would know or understand that the person depicted in the image intended that the image was to remain private; and
  3. the person disseminating the image knew or should have known that the person depicted in the image did not consented to dissemination.
See NH RSA 644:9-a.

In a recent case where a man was charged with two felony counts under the statute, Judge Tucker of Sullivan Superior Court ruled that New Hampshire’s revenge porn law does not violate an individual’s right to Free Speech under the First Amendment. In his decision, Judge Tucker highlighted the important distinction that the statute does not punish the simple act of communicating statements but, rather, it is content-neutral because it restricts the attempt to harass, intimidate, threaten, or coerce the depicted person.

A victim of revenge porn should consider whether a civil suit is necessary to address their harms.

Apart from the New Hampshire law which makes revenge porn a criminal offense, New Hampshire law also recognizes non-criminal causes of action for an invasion of another’s privacy, commonly referred to as privacy torts. A victim of revenge porn may consider pursuing one or more of the following privacy torts.

Public Disclosure of Private Facts

Public disclosure of private facts occurs when one publicizes a matter concerning another’s private life which would be highly offensive to a reasonable person and is not of legitimate public concern. The private matter must be publicized either to the public at large, or to so many persons that it is substantially certain to become one of public knowledge. Here, an example might be the dissemination of private images over the internet through social media posts.

Intrusion Upon Seclusion

Intrusion upon another’s seclusion occurs when an individual’s intrusive conduct goes beyond the limits of decency by unreasonably and seriously interfering with another’s interest in not having his affairs known to others and where the intruder should have realized that his or her conduct would be offensive to an ordinary, reasonable person. Intrusion does not require physical invasion of one’s home or space, but merely requires invasion of something secret, secluded or private. No proof of harm beyond the intrusion itself is required to recover damages for deprivation of seclusion. An example might be an individual who spies on another in order to obtain private, sexual images, or even when an individual discloses a private, sexual image depicting someone else to only one other person.

False Light

Invasion of privacy by placing another in a false light occurs when one publishes private information concerning another widely, where the published information identifies the person it is relevant to, and where the information places that person in a “false light” which would be highly offensive to a reasonable person. An example might include an individual posting a fake advertisement offering the sexual services of his or her lover using an image obtained through the relationship.

Appropriation

Lastly, appropriation occurs when one uses the name or likeness (including photos/videos) of another for the individual’s own benefit or advantage without the person’s consent. This includes both economic and non-economic benefit. An example might include an individual who sells sexual or private images of another obtained through his or her sexual relationship with that person.

If you feel you have been a victim of revenge porn, you should consult an experienced attorney. Please call us at (603) 288-1403 to see if we can help or fill out our online contact form for a free consultation.

Samantha J. Heuring

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