Jessica Meiselman is a New York licensed attorney specializing in entertainment and intellectual property issues. Here she explains how Rob Kardashian could be at serious legal risk for posting explicit photos of ex Blac Chyna.
In 2007, Kim Kardashian sued Vivid Entertainment over a leaked sex tape of herself that they had intended to release. The lawsuit reportedly netted a $5 million settlement and oddly, kickstarted her career as a media personality. This wouldn’t be the last time that a Kardashian was embroiled in a “revenge porn” dispute. However, since 2007, criminal laws have changed and numerous scandals have repositioned the public’s perception of those involuntarily involved as true victims. 10 years later, there is no doubt that leaking nude videos or photographs comes with even more serious consequences.
On Wednesday, Rob Kardashian unleashed a cascade of Instagram posts both berating his ex-fiancée Blac Chyna for cheating and drug use, and showcasing nude photos that she had apparently taken and sent to him. The captions ranged from ridiculing Chyna’s cosmetic surgery procedures to some of a more sinister nature; alleging that Chyna regularly does drugs while her newborn is in the house. Nude photos and harassing content violate Instagram’s Terms of Use, and within a few hours of their posting, Kardashian’s account was suspended. But instead of taking the hint, he moved the conversation to his Twitter page, posting and then deleting much of the same rant. This was more than typical Kardashian drama; specifically because of the photos, Kardashian’s public showcase of their intimate argument may have not only ran afoul of Instagram’s Terms of Use, but likely violated California law and could easily be the basis for both criminal and civil proceedings.
If Kardashian is convicted, a criminal conviction for such abusive behavior could weaken his case for parental custody.
California is one of 38 states with laws prohibiting “revenge porn,” or, more formally, the non-consensual dissemination of intimate images. Under California law, revenge porn is a misdemeanor offense proved when nude photographs, which were intended to remain private, are disseminated. The law adds that the perpetrator must know—or at least should have known—that the distribution would cause the victim “serious emotional distress” and requires that the victim suffers this level of distress. Kardashian's tirade, performed in front of his nine million followers, leaves little doubt about the hostility behind his actions. His repeated posting and deleting of the intimate images might even evidence an intention to “bump” the photos upwards on his followers’ timelines, and thus may have enhanced the damage he caused by posting them. His wildly offensive language effectively erases any opportunity he may have had to claim the posts were accidental or that they were not posted with the requisite intention. Since the law is a criminal statute, a prosecutor could initiate a criminal action on their own regardless of whether Chyna decides to press charges.
If convicted, Kardashian could face up to six months in jail per violation of the law, not to mention a fine of up to $1,000 and years of probation. But criminal prosecution may not be the end of his legal troubles sparked by this round of posts. As a custody battle over the couple’s eight month-old baby Dream looms, there is no doubt that Kardashian’s actions will be considered in any dispute. If Kardashian is convicted, a criminal conviction for such abusive behavior could weaken his case for parental custody. Chyna’s custody could also be jeopardized by Kardashian’s inflammatory statements if they are true or investigated. She is also likely to have a civil cause of action for any emotional distress, and if the statements Kardashian made about Chyna were false, she may also have a claim for defamation. Some experts claim an action of this kind could net her millions.
Some outlets have reported that Kardashian’s posting may not have violated revenge porn law, specifically pointing to the fact that Blac Chyna “liked” the pictures on Instragram, which indicates she didn't suffer any emotional distress from their dissemination. This argument is not only a stretch, it also fails to consider the nuanced nature of emotional distress and the clear cut revenge-inspired nature of his actions. Even if she did “like” the photo on Instagram, there is no doubt that the betrayal objectively caused damage. Chyna has kept mostly quiet in the wake of the incident, but in one Snapchat response, Chyna accused Kardashian of abusing her, negating any suggestion that the current dispute is less than serious. Chyna’s “like” on Instagram, while confusing, doesn’t have any impact on the fact that Kardashian’s series of posts were intended to hurt her.
Kardashian’s abusive messages about Chyna’s cosmetic surgery come just a week after President Trump received widespread criticism for taking to Twitter to chastise a woman for cosmetic surgery. After his comments, the press was quick to point to the inherent sexism in relying on a woman’s attempt to change her appearance as the deepest form of castigation. As the President of the United States and Rob Kardashian have found themselves turning to similar bullying tactics, their abuse points to the growth of a wider societal problem that revenge porn laws were drafted to address. Not only are Kardashian’s messages illegal and offensive, his comments take a misogynistic tone that authorities and Chyna herself would be remiss not to act out against.
If there's anything we’ve come to know about the Kardashian machine, it's that they seem to have no trouble turning legal drama into a profitable plot line.
