There are three major reasons why people want to ban revenge porn, or, more generally, any reputational disparagement; and there is one obvious reason why you don’t want to ban it. First, I’ll explain why people want to ban it, because they apply to a wider variety of problems than “you are causing the exact problems that you are trying to prevent”.
- Adverse employer action.
This is a major problem, however the freedom of the employer to punish or fire employees for actions taken outside of work is a far larger problem (e.g. that you ban employees from
independent political views) that requires its own specific regulation e.g. the use of MOEs and MOPs. So this does not specifically indicate to ban reputational attacks, as a functional society requires these regulations without reference to this specific class of actions provoking employer punishment. - Fear of bodily harm, robbery, vandalism, and other just law crimes. This relates to two groups of people:
— The individuals that made the claims/produced the evidence.
— The individuals that viewed the evidence.
No doubt individuals who are angry enough to harm someone’s reputation by publishing private videos would be assumed to have a higher likelihood of physical violence against that individual. Consider first, how this raises such likelihood vs. the general population or other sub-populations; and second, the threshold for action against individuals at some level of frequency of offense.
The primary question is, who is the census of sub-population or meaningful
sample of such sub-population? The first problem is identifying the
sub-population. First, we should recall the general problem of finding the
origins of information, particularly digital: re-encoding, obscuring
identifying features or places, re-enactments and deepfakes. Then we should
consider the particular forensic difficulties for revenge porn or any mostly
private action: that there are no witnesses; that there is no enduring
evidence that you later (after a few days) can retrieve with confidence in
provenance; and that long periods of time pass between the act and the
production of evidence. So why should we be confident that, for example,
the bulk of the revenge porn isn’t being mass-produced or modified in ways
that distort the originator or the actions depicted? How much effort would it
take to identify the producers, and have we even sampled one percent of those
individuals to identify their criminal tendencies? This already requires a
colossal effort, with uncertain knowledge about whether you have achieved the right answer or a sufficient sample.
One bounding box you could apply is, how many women are beaten, killed, etc.
by individuals who distributed revenge porn and nothing else? I have not
performed any scientific study, nor am I aware of one offhand. However, in
observing the news, the vast majority of these incidents are the typical
abusive current or former lover, given to physical violence, stalking, etc.
all of which have their own associated punishments. If this is the case, then
with no census or sample and a very low frequency of such incidents overall,
it’s impossible to make the case that there’s any association between the two
that isn’t also an association with far more obvious and serious abusive
behaviors, for which the risks are far better understood and the means of
investigation and resolution are far easier.
As for the threshold of action, without any good data, you have no basis even
to consider the threshold question. Recall that the problem of young poor
urban black men (on the order of 30% criminals) establishes the obvious
threshold point. If you aren’t going to pre-emptively throw them in prison,
you certainly aren’t going to throw any reputation destroyer in prison.
As for the viewers, this is back to the issue of violence on TV, pornography
viewing generally, and all such manner of cultural vices, and the studies
repeatedly show that there’s no obvious long-term effect that’s going to motivate you to
try and crack down on it. Moreover, the overall decline in the crime rate of
the 48 states as the cultural vices have increased, means you have no obvious
signal with which you can correlate the increase in pornography, etc.
- Fear of the social consequences: in the case of revenge porn, this would be the ostracism, the insults, inability to date high value men, etc.
You could ban the reputational attack, however, as with the glowing ex-employee recommendation problem, this prevents any sort of communication about VD, abusive relationship behaviors, or even just annoyances or personal dislikes. So if you ban the reputational attacks, the end result is that every time someone goes on a date/engages in a relationship, they are rolling the dice on the frequency of VD, abusive behavior, etc. in the entire population. Do people have the right to spread VD? Do people have the right to continue cheating on their lovers? Do people have the right to beat or steal from their lovers and continue that pattern with every new person they date?
Additionally, with no valid information about individuals’ personalities or
behaviors, people have no effective way to screen friends or lovers on any
axis of personality or behavior that could be considered undesirable. So what
about introverts? What about people who like their alone time? What about
people who are needy (or cold, both are undesirable)? People who don’t like
exercise, or who live in the gym all day? If you want someone
compatible with you, you now have no way efficiently to match. We talk about
the problem of 25% single parents, the late marriages caused by the inability
to rely on a marriage staying together, and all the elements of delayed
adulthood and independent happy living caused by additional complexity and
critical path delays. Hence banning reputational disparagement wastes time, increases
failed families, and decreases quality relationships.
Finally, there is one major reason why you certainly don’t want to punish
revenge porn: in order to obtain a conviction, you must prove that the
depicted acts actually occurred, and you must enter them into the court
record. Now you are provoking all of the negative consequences you are trying
to avoid.
Even if you obscure the name of the depicted, you still publish the
name of the offender and they still will serve time. Anyone can reason
backwards from that, that one of their former lovers was the cause, and shun
them all. If the depicted’s name comes out, you could try to censor it, in
which case now you have another way to track those depicted in revenge porn –
just look for anyone on the blacklist (which almost inevitably will be
disclosed).