What Legal Action Can I Take Against Online Sexual Harassment?

Traditionally, sexual harassment has been considered an employment claim, says Elizabeth Hanley, an employment and labor law attorney at Schroeter Goldmark & Bender in Seattle who represents employees in a wide range of discrimination and wrongful termination cases. And even as sexual harassment remains a significant problem within U.S. workplaces, technology has expanded the domain of sexually harassing behaviors beyond the physical workplace.

In our social and work environments shaped by social media, text messages, and other electronic communications, online sexual harassment has become more prevalent. However, there is not a single or straightforward “online sexual harassment claim” in the way that there is an employment sexual harassment claim under Title VII or state law. Instead, your legal options for addressing online sexual harassment and holding the perpetrator accountable will depend on various factors, including:

• Who the perpetrator is;
• The nature of the harassing activity;
• The scope of laws in your state prohibiting sexual harassment and revenge porn.

This article will discuss some of the considerations in bringing a lawsuit for online sexual harassment.

What Is Sexual Harassment?

Generally, sexual harassment is any unwelcome conduct—whether physical or verbal—that is targeted at someone because of their sex, gender identity, or sexual orientation.

Within the in-person contexts of employment and public accommodations, sexual harassment may include unwanted touching, unwelcome sexual advances, requests for sexual acts, or sexual assault from a supervisor or coworker. It may also consist of sexualized jokes or comments or disparaging remarks about someone’s physical appearance. Learn more about sexual harassment in the workplace, including state and Title VII lawsuits and reporting discrimination to the Equal Employment Opportunity Commission (EEOC).

What Are Examples of Online Sexual Harassment?

Sexual harassment has the same definition in online contexts as in-person ones—any unwelcome conduct directed at someone because of their sex. But online, sexual harassment can manifest in different ways, including:

• Receiving unwanted sexual images, videos, messages, or social media comments;
• Online threats, exploitation, or blackmail to engage in sexual acts or content sharing;
• Cyberbullying involving online gossip, humiliating or offensive remarks, body shaming, or other content of a sexual nature about you;
• Revenge porn, or the non-consensual posting or sharing of intimate or sexual content depicting you.

What Can I Do to Protect Myself from Online Harassment?

There are a number of things you immediately can do to protect yourself from and respond to incidents of online sexual harassment:

• Block the person sending you unwanted sexual content;
• Report harassment to the social media platform or website;
• Report and request that the social media platform or website remove images or videos of you;
• If you are receiving threats of physical harm if you don’t engage in certain activities, you may consider reporting it to law enforcement.

What Legal Action Can I Take to Stop Online Sexual Harassment?

When it comes to legal action for online sexual harassment, Hanley says it depends on:

• Who’s doing it;
• The type of conduct they engaged in; and
• Whether the person or entity that harmed you had some kind of legal duty to avoid that harm.

Employers

For example, “Your employer is a person who has a legal duty to avoid sexually harassing you,” says Hanley.

“So, if an employer or supervisor is making sexual comments, it doesn’t matter if it’s in-person or online. If they post sexual messages or images of you, you may have a claim under the traditional routes of Title VII or state anti-discrimination law—or depending upon the circumstances, there could be something like a public accommodations claim.”

Internet Service Providers

Unlike your employer, Hanley says that social media platforms and internet providers generally “don’t have a duty to keep people from being harmed through online sexual content.”

That’s thanks to Section 230 of the Communications Decency Act, a federal law according to which online service providers are generally not liable for the content that third parties use their platform to post.

Another practical issue with taking legal action against online platforms is that “they are often overseas, so we don’t have jurisdiction over them,” adds Hanley.

Copyright Infringement

Another option for holding some perpetrators of online harassment accountable would be a copyright infringement claim under federal copyright law.

This would be applicable if the perpetrator took images or videos in which you hold the copyright and posted them without your permission.

State Revenge Porn Laws

While a copyright infringement claim would arise under federal law, 48 of the 50 states now have revenge porn laws that criminalize posting content depicting someone in a sexual fashion without the person’s consent. New York’s revenge porn law, for example, also provides civil action for victims of revenge porn to pursue compensatory damages.

Other Tort Claims

Hanley says that depending on the circumstances, there could be additional tort claims alleging physical or dignitary harm. However, she notes that defamation, for example, isn’t a tort that specifically deals with sexualized content. “It’s more about whether something is false and places someone in a poor light.” That being said, defamatory content could involve sexualized content. Depending on the situation, it may be a viable claim.

The Upshot: Thoroughly Evaluate All Your Potential Legal Claims

Each of the legal claims discussed above is complex—involving statutes in different legal domains and levels (federal or state), and that are highly fact-dependent. Some cases, such as a traditional Title VII claim against an employer who has sexually harassed an employee, are relatively clear-cut, whereas holding an internet service provider accountable is possible only in very rare circumstances.

What does this mean practically? As an attorney, Hanley says it means “I absolutely look at and evaluate all possible claims.” For individuals who have experienced sexual harassment, whether online or in-person, it means that there are many options available to pursue justice and compensation. Often, the best way to evaluate your legal options is to speak with an attorney about your specific circumstances. An experienced attorney can bring their knowledge and expertise to the facts of your case and advise you accordingly.

Another role of attorneys that is often overlooked is in advocacy. “I think the law has a lot of catching up to do with the realities of the internet,” says Hanley. “And if the law doesn’t seem right, we can bring strong, non-frivolous lawsuits focused on moving the courts in a direction that seems more just. Laws are there to be made and examined—not merely accepted. People really help by going to lawyers and by bringing claims that expose where we need to make progress, either legislatively or through litigation, to make laws fit the values we have as a society.”

Find Legal Help

To begin, search the Super Lawyers’ directory of experienced attorneys in the employment and civil litigation space. For more general information about these areas of law, see our overviews of sexual harassment and discrimination law.