United States: Section 5 Unfairness: Cheated On Me And Broke My Heart…

Last Updated: May 8 2015
Article by Gary D. Hailey

...Gonna show the world your private parts (From the 2012 song "Revenge Porn!" by Blood on the Dance Floor)

When a partner of mine asked me if I had heard about the FTC's "revenge porn" case, I thought she was pulling my leg. But she wasn't.  It turns out that the Federal Trade Commission recently accepted a consent agreement with alleged revenge-pornster Craig Brittain.

The fact that the FTC had gone after a revenge-porn website was enough to get my curiosity.  But what got my attention was the unfairness count of the complaint against Brittain — which was based on an interpretation of the FTC's unfairness authority that I found surprising.   So even if revenge porn might not be your thing it's worth a few moments to understand how the FTC used its unfairness authority in this matter.

In case you're not familiar with revenge porn, it's a type of online harassment that involves the posting of naked pictures of people without their permission.  It's called revenge porn because it's believed that most of the people who provide the naked pictures to revenge-porn websites are jilted lovers or have some other kind of beef with the people in the pictures.

It's not clear what inspired the FTC to join the crusade against revenge porn.  But the closer you look at the FTC's action against Craig Brittain, the harder it is to understand – or defend. 

In fact, it strikes me as one of the most mind-boggling things the FTC has done since I started work there after graduating from law school in 1977 – which is saying something, boys and girls. Call me literal-minded, but it seems to me that the FTC's Bureau of Consumer Protection should stick to protecting consumers.

However, the people who were victimized by Craig Brittain's revenge-porn operation weren't his consumers. A woman whose private sex tape or bathroom-mirror "selfie" ended up on his website might have been injured by what Brittain did.  Of course, she would have been injured if he had been driving home drunk as a lord and plowed into her car.  But the Bureau of Consumer Protection wouldn't have characterized her as a "consumer" and gone after Brittain for violating Section 5 in such an instance.

Even if you accept the proposition that it makes sense for the FTC to target revenge porn, Craig Brittain is a very odd target for the Commission. Brittain made only $12,000 from his website, which is considerably less than the typical FTC target.  And, as the FTC complaint against Brittain acknowledges, he took down his website in April 2013.

So why did the Commission choose to release the hounds on someone who was clearly a very small fish in the very large pond of Internet sleaze?

Before I try to answer those questions, let's take a closer look at the FTC's complaint and order against Brittain. We'll begin with Count I of the complaint, which sets forth the crux of the FTC's case:

[Brittain] disseminated photographs of individuals with their intimate parts exposed, along with personal information of such individuals . . . for commercial gain and without the knowledge or consent of those depicted, when he knew or should have known that the depicted person had a reasonable expectation that the image would not be disseminated through the Website for commercial gain.

[Brittain's] practices . . . have caused or were likely to have caused substantial injury to consumers that is not reasonably avoidable by consumers and is not outweighed by countervailing benefits to consumers or competition. These practices were, and are, unfair acts or practices.

The most significant problem with Count I of the complaint is its perversion of the FTC's traditional definition of unfairness. Section 5 prohibits unfair or deceptive acts or practices.  Most of the agency's consumer protection cases are based on deception – unfairness cases are relatively uncommon.  That's a good thing, because unfairness is a very subjective and elastic legal concept that can be (and has been) abused by overzealous regulators.

In 1980, the Commission issued a policy statement setting forth a three-part test for unfairness, which was later codified by Congress:

To justify a finding of unfairness the injury must satisfy three tests.  It must be substantial; it must not be outweighed by any countervailing benefits to consumers or competition that the practice produces; and it must be an injury that consumers themselves could not reasonably have avoided.

That Commission – which was chaired by Democrat Michael Pertschuk and included Robert Pitofsky, a Democrat who later became a highly-respected FTC Chairman – had more to say about what constituted a "substantial injury":

In most cases a substantial injury involves monetary harm, as when sellers coerce consumers into purchasing unwanted goods or services or when consumers buy defective goods or services on credit but are unable to assert against the creditor claims or defenses arising from the transaction.  Unwarranted health and safety risks may also support a finding of unfairness.  Emotional impact and other more subjective types of harm, on the other hand, will not ordinarily make a practice unfair.

In 2003, former BCP Director Howard Beales reiterated what the 1980 policy statement had said on this point:

The first step in the unfairness analysis is to determine whether there has been substantial consumer injury.  It can be economic harm, or a threat to health or safety. . . . As the Commission noted in the policy statement, emotional distress is ordinarily insufficient.

That seems pretty clear. I'm not sure the other two parts of the three-part unfairness standard were met here either.  But I'm not writing War and Peace, so I'm not going to discuss in detail what is problematic about the Commission's determination that the alleged "substantial injury" here was not outweighed by countervailing benefits, and was not reasonably avoidable by consumers themselves.

But I can't help but note that the Cyber Civil Rights Initiative, a group that is working to bring an end to revenge porn, has reported that 83% of revenge porn victims said they took nude "selfies" that they shared with others.  If those numbers hold for the people whose photos ended up on Brittain's website, doesn't that call into question the FTC's conclusion that the injury here was "not reasonably avoidable by consumers themselves"?

By the way, Brittain has claimed that only about 5% of the photos on his site were true revenge porn, and that he removed all such photos immediately upon request.  The majority of the photos on his website were "selfies" whose subjects had already posted them on other public websites – Facebook, Tumblr, and the like – while many others were from porn sites and came to Brittain with model releases for the individuals depicted.

If he's telling the truth, that further undercuts the "not reasonably avoidable by consumers themselves" leg of the FTC's unfairness theory in this case.  (You can click here to read Brittain's side of the story.)

Let's talk now about the consent order against Brittain – in particular, Part I of that order:

[Brittain] is . . . enjoined from disseminating, through a website or online service, a video or photograph of an individual with his or her intimate parts exposed without clearly and prominently disclosing . . . that [Brittain] will disseminate the video or photograph for commercial gain . . . and obtaining affirmative express consent in writing from the individual for such dissemination.

I'm not going to discuss or even quote the FTC's definition of "intimate parts" here.  (I don't want to push my luck with my editor, who I'm sure is already squirming uncomfortably about posting this piece.)  Suffice it to say that definition is probably both too broad and too narrow, is redundant, and would make many advocates of gender equality very unhappy.

Note that Part I of the order only prohibits Brittain from disseminating naked videos or photos "for commercial gain." It seems the FTC is more outraged that Brittain made money from his website than that the women and men who were in the photos he disseminated felt violated as a result.  If the goal is to prevent the humiliation caused by revenge porn, does it matter if the naked pictures are posted on a for-profit website or a not-for-profit website?

State laws that criminalize revenge porn focus on the preventing harm to the victims whether or not the person who disseminates the sexually-explicit material is motivated by money or something else. For example, the first successful prosecution under California's revenge-porn statute involved a man who had posted a single topless photograph of his ex-girlfriend on her employer's Facebook page.

Craig Brittain is perfectly free to do the same thing under the terms of his FTC consent because there's no commercial gain involved.  But that California man was sentenced to a year in jail as a result.

Speaking of the California revenge-porn statute . . .

Only days after the FTC announced its order against Brittain, a California jury found a man who operated a revenge-porn website similar to Brittain's guilty of multiple felonies.  That man faces up to 23 years in prison when he returns to court for sentencing next month.

Compare his fate to that of Brittain, who settled with the FTC by merely promising to go and sin no more.  He didn't have to pay a penny to the government or to his victims, much less go to the poke.

As was noted above, Brittain was a small-time operator – he made a measly $12,000 from his revenge-porn operation – and I'm guessing the greenest assistant attorney general would have had little trouble gobbling him up.

But if the FTC wanted to dip its toe into the revenge-porn-enforcement waters, Craig Brittain was the perfect patsy.  After all, there was little or no chance that Brittain would fight the FTC over a website that had generated very little revenue and had been taken down in April 2013.

So there was really no downside for the FTC here.  But there was an upside: as soon as the Commission announced the order against Brittain, it could expect to be showered with praise by those who are repulsed by revenge porn . . . which is almost everyone.

If you ask me, the FTC should leave revenge porn to the states, which can impose much tougher penalties than cease-and-desist orders.  The public would be better served if the Commission devoted its limited enforcement resources to cases that actually protect consumers rather than engaging in what could be seen as showboating designed to generate favorable publicity.

I'm guessing that the Brittain case is an aberration that the world will little note, nor long remember. But there's another possibility here.  What if the FTC's action against Craig Brittain is a harbinger of a wave of cases that rely on its unfairness authority to engage in what has been referred to as "Star Trek law enforcement" – in other words, boldly going where it has never gone before?

The FTC has been down that path before.  In the 1970s, the agency embarked on a series of initiatives that relied on an overly expansive reading of its unfairness authority – including a rulemaking that proposed to ban all television advertising aimed at children.  (The Washington Post called that proposal "a preposterous intervention that would turn the agency into a great national nanny.")

Nothing much came of the so-called "Kidvid" rule and the FTC's other unfairness-based initiatives of that era.  Congress saw to that. But the 1970s were a long time ago.  As former BCP director Howard Beales has said,

One of the threats to the Commission going forward is that there are very few people left that went through the trauma of the 1970s.  The people that went through it are universally more cautious about expansive notions of unfairness.

The philosopher Santayana famously said, "Those who cannot remember the past are condemned to repeat it."  Time will tell whether the current Commissioners and senior staff have forgotten the lessons of the 1970s – or are too young to have learned those lessons in the first place.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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