Revenge porn (Revenge Porn) refers to sexually explicit media that is distributed without the consent of the individual(s) involved.[1] An act of Revenge Porn therefore involves the recording of video or still images of a person that is usually engaged in sexual acts (Revenge Content) and publishing or threatening to publish it. A persons participation may be consensual or non-consensual with the photographer subsequently uploading the Revenge Content to revenge porn websites with links to social media websites with the intent of humiliating the person depicted.
The ubiquity of devices with picture and video capability coupled with social media that has created numerous opportunities for the recording and distribution of Revenge Content.
The legal remedy for Revenge Porn in Australia – breach of confidence
There is no superior court authority that affirms the existence of a general tort of privacy in Australia,[1] despite such a tort existing in the United States, United Kingdom and New Zealand.[2] However, there are several legal authorities that support the right to an equitable obligation of confidence to protect personal private information.[3] Generally, for an equitable duty of confidence to exist there must be:
- information containing the “quality of confidence”;
- imparted in circumstances which import “an obligation of confidence”; and
- disclosed without authorisation.
- These elements and breach of confidence remedies are discussed below in the context of the relationship that exists between sexual partners.
The case of Giller v Procopets [2004] VSC 113
Whilst Giller v Procopets involved the recording of video on the now superseded medium of “video cassettes”, the case provides useful guidance for victims of Revenge Porn.
In this case, the parties were in a de facto relationship and the defendant recorded videos (initially without consent) of himself engaging in sexual encounters with the plaintiff. He subsequently distributed those videos, and made threats to further distribute the video to her employer before they were eventually handed to the Court.
The plaintiff pleaded three causes of action in this part of her claim relating to the videos[1]:
- damages for breach of confidence;
- intentional infliction of emotional distress;
- invasion of privacy.
The plaintiff claimed compensatory, aggravated and exemplary damages for a breach of confidence. To succeed, it was said by Gillard J at 149 that the plaintiff had to establish the following:
- “that during their sexual activities a confidential relationship existed between the parties;
- that what appears on the video tape of their sexual activities was a portrayal of information of a confidential nature;
- that there had been an unauthorised use of the information by the defendant to the detriment of the plaintiff;
- that she suffered injury as a result and was entitled to damages.”
Confidential relationship
As Gillard J stated at [156], the relationship of marriage has been established as a confidential one. To that end, an obligation to respect the confidences of that relationship exists. This will in fact continue after divorce. His Honour went further to extend that obligation of confidence to any persons engaging in a private sexual relationship, which “involves a relationship of mutual trust and confidence which is to be shared between the persons but is not to be divulged to others without the consent of both parties.”
Gillard J cited the Judgement of Sir Nicholas Brown-Wilkinson VC in Stephens v Avery [1988] Ch 449 in the UK Court of Chancery, which concluded that:
“I can see no reason why information relating to that most private sector of everybody’s life, namely sexual conduct cannot be the subject matter of a legally enforceable duty of confidentiality.”
Unauthorised use of confidential information
Without any need for deliberation, Gillard J confirmed that the acts of the plaintiff amounted to ‘unauthorised use’ of the confidential information:
“it can be stated at this stage without further discussion that the showing of the video film of the sexual activities without consent of the parties would be an unauthorised distribution of the information”.
Whilst it was accepted that the defendant had breached the equitable obligation of confidence to the plaintiff, generally damages for physical or mental injury and the like which were sought are common law remedies and are not available in equity. That said on appeal Neave JA considered that an award of damages of $40,000, including $10,000 for aggravated damages was fair and reasonable. A discussion of the reasons for this award is beyond the scope and purpose of this article.
Moreover, because the videos had been tendered to the Court the granting of an injunctive relief would be pointless.
The case of Power v Mann [2010] VCC 1401
This more recent Victorian case analysed the obligation of confidence arising from the secret filming of a residential bathroom. The defendant installed a camera in the bathroom of his home, and recorded footage of the plaintiff (with whom he had a close relationship) showering. Unsurprisingly, Misso J considered the bathroom a place where any person would reasonably expect privacy, and therefore the footage of those acts was not to be disclosed to any third person.
In this case there was no evidence that the footage had been distributed or shown to other people, but the plaintiff using the footage for his own purposes was sufficient to amount to a breach. Following the Court of Appeal in Giller, damages for distress-type injuries were available, and the plaintiff was awarded the amount of $25,000.
Criminal liability
The criminal laws which apply to the publication of Revenge Porn are enacted by each individual Australian state. Unfortunately, the result of this is an inconsistent framework, which largely fails to address the issue. To date, Victoria is the only state which has enacted specific legislation to combat the issue.
In 2014, the Victorian state government amended the Summary Offences Act 1966 (Vic), by inserting s41DA, making it an offence if a person ‘intentionally distributes an intimate image of another person’, where that distribution is ‘contrary to community standards of acceptable conduct.’ Notably, “image” is defined in the Act to include video. An offender is liable for to up to 2 years imprisonment. Section 41DB further makes in an offence to threaten to distribute such an image. Further, division 474 of the Criminal Code Act 1995 (Cth) creates offences in relation to telecommunication services, including using a carriage sergice to menace, harass or cause offence; and using a carriage service to transmit indecent communication to a person under 16 years of age.
Acts in other states including New South Wales and South Australia address elements of the problem, however fail to substantively capture the issue in its entirety. The criminal provisions at present largely include laws that are outdated for the modern technological practice, or which were developed for other purposes, but incidentally include acts involving Revenge Porn.
Preventing publication or removing Revenge Content
In cases where a person is threatening to publish Revenge Content, Giller v Procopets serves as authority that an application to a Court of competent jurisdiction could be made on an interlocutory basis to immediately restrain such publication based on an equitable breach of confidence. Even after publication, such an injunction could force the person responsible for publication to remove the Revenge Content from revenge porn websites.
The injunctive remedy is a discretionary remedy of the Court and will depend on the quality of the evidence which an aggrieved party can present to support such an application. One of the relative benefits of commencing proceedings in this way is the speed by which an order for injunctive relief may be able to be obtained.
Update (14 September 2015): Labor MPs have released a draft Bill which proposes to amend the Criminal Code Act 1995 (Cth) to make it an offence to transmit or distribute ‘private sexual material’ without the consent of the subject of that material. The Bill proposes three years imprisonment as the penalty for such an offence. It also criminalises the making of threats in connection with private sexual material, and possessing such material with the intent to commit an offence.
Disclaimer
This article contains general commentary only. You should not rely on the commentary as legal advice. Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.
Cases
Giller v Procopets (No 2) [2009] VSCA 72 (8 April 2009)
Giller v Procopets [2004] VSC 113.
Power v Mann [2010] VCC 1401 (25 October 2010)
Further information
If you have been a victim of Revenge Porn and would like advice on your rights and obligations, please contact us for an obligation free and confidential discussion.
Malcolm Burrows B.Bus.,MBA.,LL.B.,LL.M.,MQLS.
Legal Practice Director
Telephone: (07) 3221 0013 | 1300 DUN LAW
Mobile: 0419 726 535
e: mburrows@dundaslawyers.com.au
References
[1] Wikipedia accessed at https://en.wikipedia.org/wiki/Revenge_porn on 7 July 2015.
[2] Giller v Procopets [2004] VSC 113.
[3] Vidal-Hall v Google [2014] EWHC 13 (QB); Hosking v Runting (2004) 7 HRNZ 301; (2005) 1 NZLR 1.
[4] ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199.
[5] Giller v Procopets [2004] VSC at 18
