Take It Down Act: New Federal Liability for Intimate Visual Depictions
- Nancy Mertzel
- 15 minutes ago
- 3 min read
A new federal law intended to combat the widespread problem of online intimate depictions took effect on May 19, 2026. The TAKE IT DOWN Act imposes federal criminal liability for knowingly publishing intimate depictions, such images and videos, and requires online platforms to remove such material when requested by affected individuals. Read on to learn about the details of this new law and its ramifications for online platforms.
Basics of the law
The TAKE IT DOWN Act criminalizes the knowing publication of intimate, non-public, visual depictions of adults or of minors as well as the knowing publication of “digital forgeries” of adults or of minors. For adults, the publication must be intended to or cause harm, including psychological, financial or reputational harm, to the identifiable individual. For minors, the publication must be intended to abuse, humiliate, harass, or degrade the minor or to arouse or gratify the sexual desire of any person. The Act also criminalizes threats involving intimate visual depictions and digital forgeries. Penalties for these offenses range 18 to 30 months, according to the statute.
Unlike the Violence Against Women Act, the TAKE IT DOWN Act does not codify a new private cause of action. Additionally, the TAKE IT DOWN Act does not include a preemption clause, which means state tort and privacy laws can apply concurrently. Though all fifty states and the District of Columbia have adopted some form of legislation to address the distribution of nonconsensual intimate images, as shown in this map, this new statute criminalizes such activity nationwide.
Notice and Takedown System
Section 3 of the TAKE IT DOWN Act creates a notice and take down system reminiscent of the Digital Millenium Copyright Act. Within a year from enactment, covered online platforms must institute a system in which an individual can notify the platform of an intimate depiction published on the platform without their consent and request the platform remove it. The rule applies to websites, online services, online applications and mobile applications that serve the public, primarily provide a forum for user-generated content or which, in the regular course of business, publish, curate, host or make available nonconsensual intimate visual depictions, but excludes providers of broadband internet access service, email, and platforms that host preselected user-generated content and platforms for which chat, comment, and interactivity is incidental to, directly related to, or dependent on provision of such preselected user-generated content. Platforms are directed to remove the material and make reasonable efforts to identify and remove all known identical copies of the material within 48 hours of receiving a takedown request.
Failure to comply with this notice and takedown requirement is a violation of rules prohibiting unfair or deceptive acts, overseen by the Federal Trade Commission (FTC) which has broad jurisdictional authority. The FTC sent warning letters to a dozen websites on May 20, reminding them of their obligation to comply with the TAKE IT DOWN Act, suggesting the federal government may be planning early and proactive enforcement of the statute. Platform liability from claims is limited if the platform disables access to or removes alleged offending material in good faith, regardless of whether the depiction is later determined to be unlawful or not.
Takeaways
The TAKE IT DOWN Act creates federal penalties for knowingly publishing or threatening to publish authentic intimate depictions or digital forgeries of adults and of minors.
Platforms that host user-generated content are required to institute a notice and takedown system to answer removal requests.
Feel free to contact us if you have questions about the TAKE IT DOWN Act, would like to discuss these issues, or would like to join our mailing list.
Nancy J. Mertzel
Mertzel Law PLLC
1204 Broadway, 4th Floor, New York, NY, 10001
(646) 965-6900