Previously, we began looking at the topic of revenge porn and the expectation of privacy revenge porn laws seek to protect with respect to sexually explicit images. As we noted, revenge porn laws are not universally supported because, in the view of some critics, they codify an unreasonable expectation of privacy in the digital age and encourage people to relinquish discretion in sharing explicit images with others.

For those who have been charged in connection with revenge porn, it is important to understand that certain elements have to be proven before the state can obtain a conviction. For one thing, it isn’t revenge porn—or “cyberstalking” — if the individual depicted in the image or video provided consent to the publishing of the image. The exact limits of consent in the context of Florida’s cyberstalking law—such as when consent is provided but revoked—have yet to be defined, but it is conceivable that this could become a disputed issue in cyberstalking cases.

In cases where consent to publishing sexually explicit material has not been provided, the state must still prove that there was no legitimate purpose to posting sexual explicit images and that the images were published with the intent to harass the depicted individual. The exact lines have yet to be drawn, but sexually explicit images could, for instance, be published for artistic or advertising purposes, with no intent to harass. While publishing such images without consent is not recommended, this wouldn’t—or shouldn’t, by law—be considered cyberstalking.

In defending against cyberstalking and related charges, it is important to work with an experienced criminal defense attorney, not only to ensure the state meets its burden of proof in establishing each element of the offense, but also to minimize any damages awarded in a civil action to obtain relief for cyberstalking.