Brenda Dvoskin (Harvard Law) has posted “Speaking Back to Sexual Privacy Invasions” (Washington Law Review, Vol. 98, 2023) on SSRN. Here is the abstract:
Many big players in the internet ecosystem do not like hosting sexual expression. They often justify these bans as a protection of sexual privacy. For example, Meta states that it removes sexual imagery to prevent the nonconsensual distribution of sexual images. In response, this Article argues that banning digital sexual expression is counterproductive if the aim is to alleviate the harms inflicted by sexual privacy losses.
Contemporary sexual privacy theory, however, lacks analytical tools to explain why nudity bans harm the interests they intend to protect. This Article aims at building those tools. The main contribution is an invitation to locate part of the harm that victims experience not in the unwanted exposure but in the social interpretations of that exposure. If social interpretations make losses of sexual privacy exceptionally harmful, we should focus on both preventing invasions and changing those interpretations. Sexual expression is a powerful discourse that often aims at rewriting the social script that underlies the social sanctions we collectively impose on victims. Thus, the Article argues that protecting sexual expression ought to be an essential piece of a content moderation system designed from a sexual privacy perspective.