Wednesday, June 29, 2016
Court of Appeal Rejects Immunity Claims, Upholds Conviction in ‘Revenge Porn’ Case
By a MetNews Staff Writer
A San Diego man who created a web site for the posting of sexually explicit photos, then offered to remove them in exchange for money, was not immune from prosecution, the Fourth District Court of Appeal ruled yesterday.
Div. One affirmed Kevin Bollaert’s convictions on six counts of extortion and 21 counts of misusing personal identifying information. A San Diego Superior Court judge sentenced Bollaert to eight years in custody, followed by 10 years of mandatory supervision.
In this file photo, Kevin Bolleart listens to testimony during his trial in a San Diego courtroom.
State Attorney General Kamala Harris, whose office investigated and prosecuted the case, called it “the first criminal prosecution of a cyber-exploitation website operator in the country.”
Judge David Gill originally sentenced Gill to 18 years in custody, with no supervision term, but modified the sentence in September of last year. The Attorney General’s Office had urged Gill to stick to the original sentence.
Harris had hailed the judge’s original sentencing decision, saying in a release it “makes clear there will be severe consequences for those that profit from the exploitation of victims online.” Offenders like Bolaert are “committing what is essentially a cowardly and criminal act,” she said.
Investigators testified that from December 2012 to approximately September 2013, Bollaert ran the website ugotposted.com, which allowed the anonymous, public posting of private photographs containing nude and explicit images of individuals without their permission. The posters were often former romantic partners looking for payback after relationships soured, hence the term “revenge porn.”
Ugotposted.com required that the poster include the subject’s full name, location, age and Facebook profile link. As a result, the victims experienced severe harassment through social media, at their places of work and in other communities, prosecutors said.
Bollaert’s second site, changemyreputation.com, was created in October 2012. There was testimony that Bollaert would contact the subjects of photos posted on the first site, then would email them using a changemyreputation.com email address and offer to remove the photos for a fee ranging from $250 to $350.
Bollaert said he made approximately $900 per month from the site. PayPal account records showed he received about $30,000 in payments.
The defense argued that Bollaert was immune from prosecution under §230(c)(1) of the federal Communications Decency Act. The statute provides in part that “[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,” and expressly preempts any conflicting state law.
But Justice Terry O’Rourke, writing for the Court of Appeal, said there was substantial evidence that Bollaert was at least the co-creator of the offensive content, not merely a host.
The justice cited Fair Housing Council of San Fernando Valley v. Roommates.com, LLC (9th Cir. 2008), which allowed the plaintiffs to sue the operator of a website matching potential roommates for disseminating information regarding individuals’ discriminatory roommate preferences for violating the Fair Housing Act.
The court held that §230 does not confer immunity when the site operator creates a questionnaire that users can fill out online, and then posts the responses or profiles created from the responses.
“Here, the evidence shows that like the Web site in Roommates, Bollaert created UGotPosted.com so that it forced users to answer a series of questions with the damaging content in order to create an account and post photographs. That content—full names, locations, and Facebook links, as well as the nude photographs themselves—exposed the victims’ personal identifying information and violated their privacy rights. As in Roommates…Bollaert’s Web site was ‘designed to solicit’…content that was unlawful, demonstrating that Bollaert’s actions were not neutral, but rather materially contributed to the illegality of the content and the privacy invasions suffered by the victims. In that way, he developed in part the content, taking him outside the scope of CDA immunity.”
The case is People v. Bollaert, 16 S.O.S. 3169.
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