By: Patricia McHugh Lambert, Esq.
News of abusive sexual behavior and scandal involving deplorable actors and film producers such as Harvey Weinstein have been pervasive in recent headlines. These scandals run the gambit, from harassment problems including individuals preying on co-workers to employment waivers preventing employees from disclosing harassment or asserting other rights. There has also been an increase in sexual harassment and extortion concerns raised by the use of technology. Because technology often changes faster than the law, citizens are left vulnerable to technology based abuse and harassment with the ever-increasing ability for people to disseminate private information to the world from their mobile phones without much of a second thought.
The problems of protecting Marylanders from harassment are myriad. For a long time, employers could minimize the consequences for workplace harassment through their employment agreements. In this regard, Maryland employers were permitted to draft employment contracts in which their employees waived certain rights related to actions against employers for future sexual harassment, assault, and retaliation against the employee for reporting sexual harassment.
A different and equally challenging harassment problem exists for a Maryland resident who might have agreed to make sexually explicit homemade videos for private use by their partner but did not agree to have the video distributed publicly. For example, let’s say a couple splits up and the ex-partner uploads such a private video for the world to see in retaliation for the breakup. Does the victim have any right to object to that video of themselves being uploaded, despite their initial willingness to record the video? Is there any recourse against the former lover?
Here’s another problem with modern mobile technology. Bad actors are able to communicate using a spoofed telephone number. What if someone in Maryland is conned into providing sensitive images or other information to a bad actor pretending to be someone the victim trusts?
These are just several of the potential problems the Maryland General Assembly has tackled during the 2018 legislative session. Some key changes have been in the form of (i) how employers may permissibly draft their workplace harassment waivers, (ii) how “sextortion” and revenge porn is prosecuted, and (iii) updates to the caller ID spoofing law which prohibit caller ID spoofing when contacting another individual in the State with the intent to defraud, harass, cause harm to, or wrongfully obtain something of value. Each of these laws will go into effect on October 1, 2018.
First, the legislature passed (Chapter 739), which provides that a provision in an employment contract or agreement that waives any substantive or procedural right or remedy to a claim of sexual harassment or retaliation for reporting sexual harassment that accrues in the future is null and void as against public policy of the state. In addition, the bills provide that an employer may not take an adverse action against an employee for the employee’s refusal to enter into an agreement that contains such a void waiver, including failure to hire, discharge, suspension, demotion, or any other retaliatory action that results in a change to the terms or conditions of employment that would dissuade a reasonable employee from making a complaint or bringing an action regarding the harassment or retaliation.
Second, Maryland has said #MeToo and joined 39 other states and D.C. by adopting legislation (Chapter 365) aimed at stopping sextortion and revenge porn. The legislation does this in two ways. The bill prohibits a person from using threats to cause another person to engage in sexual activity or cause another to be the subject in a visual representation/performance with the person’s intimate parts exposed or engaging/simulating an act of sexual activity. The penalty for coercion is a misdemeanor carrying up to 10-years imprisonment and a fine not to exceed $10,000. Additionally, this bill prohibits a person from knowingly distributing a visual representation of another person that displays the other person with his/her intimate parts exposed with intent to harm, harass, intimidate, threaten, or coerce, or under circumstances in which the person knew the other person did not consent to distribution or with reckless disregard as to distribution and the other person had a reasonable expectation the image would remain private. Violation for unauthorized distribution is misdemeanor punishable by prison for up to 2 years and/or fine up to $5,000.
Third, the legislature passed legislation (Chapter 501), which expands the definition of abuse for individuals seeking protective orders to include “revenge porn.” Revenge porn is defined as intentionally causing serious emotional distress to another by intentionally placing on the Internet a photograph, film, videotape, recording, or any other reproduction of the image of the person that reveals the identity of the other person with his or her intimate parts exposed or while engaged in an act of sexual contact knowing the other person did not consent to the placement of the image and under circumstances in which the other person had a reasonable expectation that the image would be kept private.
Lastly, Caller ID spoofing is the practice of using an application or other technology in connection with a communication service, including a telecommunications, broadband, or Voice over Internet Protocol (VoIP) service, to knowingly cause a caller identification service to transmit false or misleading caller ID information to an individual receiving the call. Under the Truth in Caller ID Act, FCC rules since 2009 have prohibited any person or entity from transmitting misleading or inaccurate caller ID information with the intent to defraud, cause harm, or wrongfully obtain anything of value. With the enactment of new legislation (Chapter 515), Maryland has joined other states and the federal government by prohibiting an individual from caller ID spoofing when contacting another individual in the State with the intent to defraud, harass, cause harm to, or wrongfully obtain something of value from another.
Some of these new laws will clearly have an impact on businesses and how they do business. Other of the new laws will impact how individuals conduct themselves in intimate relationships. All of these laws will create additional avenues of relief for those that are victims of certain types of sexual retaliation and revenge. For a society, this is something that is certainly laudable and no one would condone such inappropriate conduct.
That said, the legislation raises issues for insureds, insurers and those that try cases. The insurance industry and those that defend those accused of improper behavior will need to determine how to handle such claims of retaliatory behavior. Will there be coverage under a homeowners policy when an intimate picture is shared? Will there be coverage for a claim of revenge porn when the defense is that there was consent or that there was no expectation of privacy? Should insurers writing EPLI policies now demand, as part of their underwriting processes, that insureds provide proof of compliance with the new legislation? As for those that try cases relating to sexual abuse and issues of retaliation, consideration will have to be given as to jury demographics—will there be a disparity in how jurors of different ages and genders react to such claims? In the era of #MeToo, will jurors and judges keep an open and unbiased mind when considering cases based on this new type of legislation? Only time will tell.
Patricia McHugh Lambert has over 35 years of experience in handling complex commercial litigation and insurance matters. Ms. Lambert has worked on national class actions, significant litigation and regulatory matters for Fortune 500 companies. She has also assisted small and mid-sized companies and business executives with contract, real estate and commercial disputes that needed to be resolved quickly and efficiently. Ms. Lambert is best known as an attorney who knows the field of insurance. She has represented insurers, policyholders, and insurance producers in disputes both in court and before the Maryland Insurance Administration. Ms. Lambert can be contacted at 410-339-6759 and plambert@pklaw.com.
Ryan Ullman is a summer law clerk at PK Law. He is a rising 3L at the University of Maryland, Francis King Carey School of Law.
