The TAKE IT DOWN Act Is Now Law: What You Need to Know

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So the TAKE IT DOWN Act has finally been signed into law. This law will help victims of non-consensual intimate image abuse, otherwise known as revenge porn, hold individuals accountable for posting sexual content without consent, as well as websites who fail to remove abusive, non-consensual content posted.

As an adult content creator, consumer, or just a concerned citizen, you might have questions and concerns about the TAKE IT DOWN Act. This article is not intended to be legal advice, but general information and my own opinions on the implementation of the TAKE IT DOWN Act based on my professional experience advocating for victims of revenge pornography and adult content creators.

Will This Impact the Adult Industry?

Now, first, there’s a lot of concerns that the TAKE IT DOWN Act will affect the adult content industry’s ability to produce content and films. Now, the TAKE IT DOWN Act is limited to cases where an individual did not consent or is underage and unable to consent to the display of their content. Consent being defined as an affirmative, conscious, and voluntary authorization made by an individual free from force, fraud, duress, misrepresentation, or coercion.

And it is also limited to cases where a person has a reasonable expectation of privacy, like in cases where partners share pictures and videos with the implicit understanding that the other will not post that content. Now, if studios or other parties are engaging in practices that involve force, fraud, or coercion, they may be subjected to criminal liability under human trafficking statutes. But again, the TAKE IT DOWN Act is limited to cases where a person’s intimate content or deepfake forgery is posted without consent. It would not apply to cases where a person did not have a reasonable expectation of privacy, such as in cases where an individual creates content with an adult content studio.

What Counts as a “Sexual Depiction”?

Now, second, the TAKE IT DOWN Act is limited to sexual depictions as defined by federal statute that allows revenge porn victims to sue. Now, the federal “revenge porn” statute is very specific. It includes words that may cause shadow bans by platforms because it is limited to solely sexual depictions posted without consent.

Again, we have very strong First Amendment protections. Obscenity is an exception to the First Amendment, but it is a very high standard. And the federal revenge porn statute, which allows victims to sue, has a very narrow definition of what sexually explicit content is.

What About Deepfake Porn and Artistic Expression?

Now, third, there is concern that the criminalization of deepfake porn may be used to infringe on artistic license, but the Act defines digital forgery, or deepfakes, as “any intimate visual depiction of an identifiable individual created through the use of software, machine learning, AI, or any other computer generated or technological means, including by adapting, modifying, manipulating, or altering authentic visual depictions that, when viewed as a whole by a reasonable person, is indistinguishable from an authentic visual depiction of the individual.”

Now, obviously, there’s a lot of qualifying words in that definition, and the keyword is “indistinguishable from an authentic visual depiction,” meaning that the deepfake has to look like an actual picture or video of the victim. Now, if someone creates a sexual artistic rendition that looks fake, like a cartoon or animation and posts it without consent, they may be subjected to civil liability under state law or common law. But in my opinion, the TAKE IT DOWN Act probably doesn’t apply.

Final Thoughts on Enforcement and Impact

As is the case with any law that is passed, enforcement does affect the way that an act is implemented. But given the language and limited purpose of the TAKE IT DOWN Act, which is to address cases of non-consensual distribution of sexually explicit content of an identifiable individual, I believe that the Act will protect victims of revenge pornography by empowering them to hold abusers and platforms accountable for posting, and failing to remove content without consent.

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Take Action to Protect Your Privacy

If someone has posted intimate images or videos of you without your consent, you don’t have to face it alone. At Minc Law, we’ve helped hundreds of individuals remove harmful online content and hold offenders accountable.

Our attorneys understand the complexities of non-consensual image abuse and are here to help.

Contact us today to schedule a confidential consultation.