Revenge porn, or nonconsensual pornography, is the distribution of sexually graphic or intimate images of individuals without their consent. It happens most frequently after the end of a relationship when a jilted ex-boyfriend (and most perpetrators are, indeed, men) seek revenge on their ex-girlfriends by appropriating images and posting them online for all to see. Sometimes, the images are paired with work and home addresses; occasionally, they accompany fake requests for sex.


They are always dangerous.

We need a federal revenge porn law, and we may get one, if Congress can overcome its dysfunction. Until then, attorneys who are representing victims of this form of cyberharassment are utilizing every tool at their disposal, including copyright and tort law. Neither option is perfect. Copyright law applies when the victim owns the picture--namely, when she took the picture herself; not all cases of revenge porn, though, start with a "selfie." And tort claims like the public disclosure of private facts do not always apply and, in any event, require victims to spend large sums of money as they jump over high evidentiary hurdles.

Another tort law option is the relatively underutilized claim of breach of confidentiality. Breach of confidentiality is a trust-based tort that has a long tradition in Anglo-American common law. It can provide a clear, practical path forward for victims of revenge porn. Stunted in American law by various contingent historical factors—William Prosser’s failure to include it in his article on “privacy torts,” among other reasons—the breach of confidentiality tort unleashes us from the limitations of other privacy torts because it focuses not on the individual or the nature of the information shared, but rather on the social relationship in which the information is shared.

Neil Richards and Dan Solove have recounted the history of the tort of breach of confidentiality, showing how embedded it
is in Anglo-American law, and propose a rejuvenation of the tort in the United States by importing modern confidence jurisprudence from Britain. Woodrow Hartzog has proposed using the tort to protect privacy. They are correct. The tort is versatile, and can also be used to help victims of revenge porn.

The tort for breach of confidentiality would impose liability when someone who is expected to keep confidences divulges them. I propose that the claim would have three elements: A successful plaintiff would need to prove that (1) the information is not trivial or already widely known; (2) the original disclosure happened in a context that indicated a confidence; and (3) the use of the information caused an articulable, though not necessarily individualized, harm.

So, what contexts indicate an expectation of confidentiality? Traditionally, those contexts have been limited to confidentiality enforced by contract, as in non-disclosure agreements or special relationships that require confidentiality. Attorney-client, doctor-patient, and similar privileges are paradigmatic of formal relationships that bring along attendant confidentiality requirements. 

But British confidentiality jurisprudence has unmoored the tort from the narrow confines of particular relationships. Professors Richards and Solove cite several cases, many of which were dual intellectual property and confidential relationship cases, to show that the required relationships were never very narrow to begin with. Those relationships have become even more attenuated in modern British confidentiality law, which only hinges on “‘the acceptance of the information on the basis that it will be kept secret . . . .’” Consider the 1969 case of Coco v. A.N. Clark (Engineers), Ltd., which “crystalized” British confidence law. Coco involved a trade secret, but the court took the opportunity to define the three elements necessary for a breach of confidentiality claim: The information (1) needs “‘the necessary quality of confidence about it’ ”; it (2) “‘must have been imparted in circumstances importing an obligation of confidence’”; and (3) there must be some use of the information to the disclosing party’s “‘detriment.’” Richards and Solove show that subsequent case law has shown these categories to be quite broad; the “quality of confidence” prong merely
means that the information is “neither trivial nor in the public domain,” and the “circumstances” prong extends beyond defined relationships and even to friends. The “damage” prong has never been
clearly explained, but it appears that British law does not require the kind of specific, particularized harm that is common to American tort law.

This claim fits neatly within a revenge porn situation. An intimate, sexual picture most certainly has a "quality of confidence" to it and it is usually exchanged in the context of a romantic relationship. And disclosure certainly can harm the victim. The next step is encouraging American courts to recognize a tort that has been out of favor for nearly 60 years.