Earlier this year, the FTC publicly banned the operator of an alleged "revenge porn" website from sharing nude videos or photographs of people without their affirmative express consent. The FTC also required the operator to destroy the intimate images and personal contact information he collected while operating the site. The operator agreed to the penalties in a settlement agreement with the agency.
The FTC's complaint against Craig Brittain alleged he used deception to acquire and post the images. Then, when women contacted Brittain to have the information removed, citing harm to their reputations and careers, he referred the women who complained to another site he controlled, where they were told they could have the pictures removed if they paid hundreds of dollars.
Interestingly, the FTC used its authority under the so-called "unfairness doctrine" to go after Brittain and his revenge porn website. Section 5 of the FTC Act prohibits, in part, "unfair ... acts or practices in or affecting commerce." Under Section 5, to justify an action by the FTC, the "unfair" act or practice must be one that "causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition."
This and earlier unfairness doctrine actions demonstrate the expansive reach of the doctrine and FTC's jurisdiction. For example, in 1999, the FTC brought an unfairness action against Beck's for its ads depicting people drinking beer on a boat. In view of the substantial risk of boat passengers falling overboard and drowning if under the influence of alcohol, the FTC alleged the Beck's ads constituted an unfair practice under Section 5 of the FTC Act. More recently, the FTC has asserted violations of Section 5 under the unfairness doctrine in cases involving data breaches, pop-up ads and adware. The revenge porn case underscores that the FTC has jurisdiction to pursue marketers for campaigns threatening all types of consumer harm. Marketers should be mindful that the unfairness doctrine is an important weapon in the agency's arsenal, particularly when it confronts conduct it views as reprehensible.
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