Australia: Senders, sharers, likers and tweeters beware – the civil implications of the crime of revenge porn

Last Updated: 27 February 2017
Article by Joshua Dale

Senders, Sharers, likers and tweeters beware – the civil implications of the crime of revenge porn

As first published in Precedent Magazine 'Revenge porn' is the non-consensual sharing of intimate images including those obtained (consensually or otherwise) in an intimate relationship; photographs or videos of sexual assault; images obtained from the use of hidden devices to record another person; stolen images from the cloud or a person's computer or other device; and pornographic or sexually explicit images that have been photoshopped, showing the victims face.i

Specific legislation has been introduced in Victoria and most recently, South Australia, making it a criminal offence to commit acts of revenge porn; however, other states as well as the Commonwealth are looking at doing the same as the issue continues to gain significant prominence in the community,ii and debate shifts to providing both criminal penalties and other options for victims to pursue.

Over the last few decades, technology has entered every aspect of our lives, making life easier but also bringing with it the risk of exploitation of those mediums. In particular, we now live in a society where people want more and more instantaneous and time-efficient interactions with their friends, family, acquaintances and work colleagues. We can now take and send photographs instantaneously from a single device. This ability comes with a number of ethical and very real risks that the images that one intends to send a single person can be circulated and shared among a vast group of people. This has led to the emergence of what we now know as revenge porn.

Revenge porn has the potential to cause significant embarrassment, psychological distress and in some cases psychological injury.

RELEVANT STATISTICS

A 2015 study at the Royal Melbourne Institute of Technology found that one in 10 Australian adults have had a nude or semi-nude image of themselves uploaded online or shared with others without their consent and the majority of victims were women aged 18 to 24. iii A national survey on technologically facilitated abuse conducted by the Women's Services Network and Women's Legal Service in New South Wales found that 98 per cent of the 546 domestic violence workers surveyed reported that they had had clients who had experienced technologically facilitated stalking and abuse of this kind. iv Recently, the third action plan on preventing violence against children and women released by the Council of Australian Government Summit in Brisbane included the announcement of a national online portal to help victims of revenge porn remove images from the internet. v

The over-representation of women as victims of revenge porn is not limited to Australia.In the UK, the government's Revenge Porn Helpline, according to its website, shows that 75 per cent of callers are women. vi

In the USA, the American Psychological Association has reported on a survey of American adults which found that 36 per cent of the participants planned to send intimate photos to their partners via email, text and social media on Valentine's Day; 10 per cent of ex-partners had threatened to post sexually explicit photographs online; and 60 per cent of the threats had become a reality. vii

Revenge porn has also featured as a specific awareness-raising topic with a number of Women's Legal Services Groups in New South Wales. It is clear, based on the research and the available data, that revenge porn is used as a tool of power and control predominantly by men against former female partners. It is for this reason that the Commonwealth is considering a national approach as the most appropriate way to protect victims. viii

The New South Wales government stated that it will seek to criminalise the creation and distribution of sexually explicit images without consent. Attorney General Gabrielle Upton has announced that while legislation has yet to be drawn up and penalties have yet to be decided, it is likely the proposed new laws will involve a jail term. ix

While criminal penalties will form part of the response to revenge porn, it is clear that civil liability will also play a key role in delivering redress to complainants where psychological injury or distress is suffered.

The fact that Victoria and South Australia have already enacted criminal sanctions, and similar proposals in New South Wales and Western Australia and at a Commonwealth level, will pressure perpetrators to rethink their actions. The issue also has the potential to create issues of vicarious liability, particularly in an employment context where employers must ensure that they are providing employees with a safe and harassment free workplace. In fact, the High Court has recently commented on the issue of vicarious liability in an employment context suggesting that:

'In determining whether the apparent performance of such a role may be said to give the "occasion" for the wrongful act, particular features may be taken into account. They include authority, power, trust, control and the ability to achieve intimacy with the victim. The latter feature may be especially important. Where, in such circumstances, the employee takes advantage of his or her position with respect to the victim, that may suffice to determine that the wrongful act should be regarded as committed in the course or scope of employment and as such render the employer vicariously liable.' x

In circumstances where psychological injury is suffered, there would be a number of potential actions that an injured party could consider both inside and outside an employment setting.

POTENTIAL BREACH OF CONFIDENCE ACTIONS

The importance of privacy and the cause of action of breach of confidence has been well recognised by the High Court. In ABC v Lenah Game Meats, xi Callinan J confirmed that:

'The ability to expose in some context parts of our identity that we conceal in other contexts is indispensable to freedom. Privacy is necessary for the formation of intimate relationships, allowing us to reveal parts of ourselves to friends, family members, and lovers that we withhold from the rest of the world. It is, therefore, a precondition for friendship, individuality and even love.'

Even when we look to historical cases, the significance of an advance in technology and the effects that this may have on privacy have been at the forefront of our jurisprudence. Justice Rich, for example, in the 1937 case of Victoria Park Racing, xii commented on the impact of the emergence of television on privacy:

'Indeed the prospects of television make our present decision a very important one, and I venture to think that the advance of that art may force the courts to recognise that protection against the complete exposure of things of the individual may be a right indispensable to the enjoyment of life.' xiii

The difficulty in advancing any case for breach of confidence is that, despite this recognition of the issue of the invasion of privacy in Australia as early as 1937, there has been no legislative amendments to give clear rights to a cause of action for individuals whose privacy has been breached. This is despite the reach and impact of technological advancements throughout the world, particularly in recent times.

It is, however, possible to found a cause of action arising out of a breach of confidence even where psychiatric injury has not been suffered. In Victoria, the case of Giller v Procopets xiv (Giller)involved a couple where the defendant used a hidden camera to secretly record the sexual activity between himself and the plaintiff. The relationship began to deteriorate, and the defendant threatened to show the plaintiff's family, friends and employer the sexually explicit material. The plaintiff pleaded three causes of action including intentional infliction of harm, invasion of privacy and breach of confidence. In 2008, the Victorian Court of Appeal unanimously upheld the action for breach of confidence and awarded the plaintiff the sum of $40,000, including $10,000 for aggravated damages. When commenting on the effectiveness of remedies in cases of revenge porn, Justice Neave said:

'An inability to order equitable compensation to a claimant who has suffered distress would mean that a claimant whose confidence was breached before an injunction could be obtained would have no effective remedy.' xv

The Court of Appeal, when considering the tort of intentional infliction of harm in Giller, remained divided. It was suggested that the focus of the enquiry should not necessarily be on a particular diagnostic label of psychological injury but, rather, the nature and extent of mental distress actually suffered as a consequence of the defendant's behaviour. However, the Court concluded that something less than a recognisable psychiatric injury was not sufficient harm to establish the tort, and so was not prepared to extend the common law action in order to award compensatory damages for mental distress not amounting to psychiatric injury.

More recently, in the Western Australian case of Wilson v Ferguson, xvi the Supreme Court adopted the approach in Giller v Procopets concerning a breach of confidence. This case involved a romantic relationship between two co-workers who used mobile phones throughout their relationship to send intimate images to each other. The relationship ended and the defendant, Mr Ferguson, then proceeded to post a number of explicit images and videos to Facebook, which were then made available to his 300 Facebook friends.

The plaintiff suffered acute shock and trauma, stopped sleeping, took unpaid leave, needed to move in with her parents and sought psychological counselling. Justice Mitchell, relying upon the Victorian decision of Giller v Procopets ordered the defendant to pay $35,000 for the significant embarrassment, anxiety and emotional distress, and $13,404 for economic loss. Furthermore, an injunction was ordered prohibiting the defendant from publishing any images of the plaintiff engaging in sexual activities or in which she appears naked or partially naked.

Notably, Justice Mitchell agreed with the Victorian Court of Appeal in Giller v Procopets regarding the equitable doctrine of breach of confidence, in that it should be developed by:

'extending the relief available for the unlawful disclosure of confidential information to include monetary compensation for the embarrassment and distress resulting from the disclosure of information of a private and personal nature'. xvii

These cases confirm the judiciary will respond to cases of revenge porn by awarding damages in cases of both psychological injury and psychological distress. It will also distinguish breach of confidence from the common law and legislative tests that usually apply – that is, that a diagnosable psychological injury must be suffered to allow for an award of compensation. It is important to remember, however, that an action arising out of breach of confidence requires a proper examination of the facts: the information must have the necessary quality of confidence, must be received in circumstances importing an obligation of confidence, and must involve an actual or threatened unauthorised use of the information.

COMMON LAW CLAIMS, VICARIOUS LIABILITY AND THE POTENTIAL FOR COMPENSATION

Clearly, the public sharing of private sexual material without consent can be humiliating, embarrassing and a significant breach of confidence. For employers there is the added possibility that they are vicariously liable for the actions of their employees in undertaking their employment if during the course of that employment psychological injury is suffered or inflicted.

For example, if an incident of revenge porn occurred in a workplace between two coworkers and psychological injury or other injury is suffered, then the employer would potentially be exposed to a claim under the Workers Compensation Act 1987 (NSW).

Arguably, a case of revenge porn between two work colleagues would satisfy ss4 and 9A of the Workers Compensation Act 1987 (NSW) if an injury was contracted or aggravated in the course of employment and that employment was a substantial contributing factor to the psychological condition, or to the aggravation of such a condition. Given the no-fault jurisdiction of workers' compensation, at least in New South Wales, the potential for a claim to be found out of an action of revenge porn is certainly a possibility, depending on the individual facts of the case.

Outside of a no-fault jurisdiction, there have been a number of cases involving circumstances where employees have been disciplined for out-of-hours conduct when using social media. For example, the Sydney Morning Herald published a number of stories throughout 2015 involving a man making disparaging and derogatory remarks online about Clementine Ford, a freelance journalist and feminist. In December 2015 the man's employer became aware of the offensive comments on Facebook, which resulted in the loss of his employment. xviii Although unrelated to his employment, his comments led to disciplinary action. Furthermore, in June 2016 The Guardian reported on a story involving a university professor who, while using his private Twitter account, made comments about other posts by a student which became the subject of complaints and ultimately led to the professor being suspended without pay because of the online engagement outside of work hours. xix

In an employment context, it is well-established that an employer has a non-delegable duty to provide a safe system of work to its employees. xx In the context of psychological injuries, the limitation is that a worker must have sustained a diagnosable psychiatric condition in order to progress with a claim.

Against this background, the proposition that employers are able to discipline staff members in respect of out-of-hours contact certainly gives rise to the possibility that circumstances where psychological injury, or other injury, was suffered as a result of revenge porn between work colleagues could give rise to a cause of action where employment puts an individual in a position of power over another. Such a situation could give rise to a number of issues of vicarious liability, including:

'where the conduct of which complaint is made was done in the ostensible pursuit of the employer's business or the apparent execution of the authority which the employer held out the employee as having'. xxi

Furthermore, if a case on face value does not give rise to vicarious liability, then arguably the burden would be much higher than in a no-fault jurisdiction. One would need to establish some kind of knowledge on the part of the employer about the actions involving the revenge porn, to a degree that no action, or inadequate action, was considered or taken by the employer in response. For example, in the Victorian decision (for which special leave for an appeal to the High Court was refused) of Box Hill Institute of Tafe v Johnson, xxii the plaintiff alleged that his employer was negligent as he had been subject to 12 instances of bullying. While the case did not specifically involve revenge porn the Court did hold that once a foreseeable risk has been identified:

'The duty owed by the [employer] to the [employee] was to take reasonable care to avoid foreseeable risk of such injury to the [employee] from circumstances of his employment. It was not necessary for the judge to find that the [employer] knew or ought to have known that it was 'likely' that any further interaction or confrontation between the respondent and Williams would cause further injury to the respondent's psyche.' xxiii

This recent decision is reasonably conclusive that if an employer is aware of the potential for injury, distress or embarrassment arising from revenge porn, it would certainly be possible in an employment context to find a cause of action in negligence against them if they failed to respond and/or discipline staff even in circumstances where the revenge porn took place outside of work hours between colleagues. Obviously, this case is not conclusive as regards revenge porn cases in an employment context; however, it will be interesting to see how the law responds if and when such a scenario arises.

CONCLUSION

The very concept of revenge porn is inextricably linked with the internet and mobile devices. Applications have made the act of sharing such materials not only easy, but have also exponentially expanded the possible audience of such images. The proposed criminal legislation and recent Victorian and Western Australian cases are a timely reminder to potential perpetrators that the law will respond to this severe breach of confidence so as to protect victims. Despite the legislative and judicial response, it is likely, however, that the disclosure of sexually explicit images of people without their consent by current or former partners is likely to continue. It is incumbent upon the law to continue to keep up with technological change and respond swiftly to how these changes interact with those that sustain psychological and other injury as a result of these types of behaviour.

Footnotes

i Drs Nicola Henry, Asher Flynn and Anastasia Powell, Submission 9, p3.

ii See the Criminal Code Amendment (Private Sexual Material) Bill 2016 and the First Reading Speech dated 17 October 2016.

iii See A Powell and N Henry, 'Digital Harrassment and Abuse of Adult Australians: A Summary Report' (October 2015) http://research.teachandme.com.au.

iv Ms Elizabeth Snell, Law Reform and Policy Co-ordinator, Women's Legal Services NSW, Committee Hansard, 18 February 2016, p27.

v See press release of the Prime Minister of Australia, the Honourable Malcolm Turnbull, available at: http://www.pm.gov.au/media/2016-10-28/government-strengthens-investment-reduce-violence-against-women-and-children.

vi See Government Equalities Office, Caroline Dinenage MP and the Rt Hon Nicky Morgan MP, 'Hundreds of victims of revenge porn seek support from Helpline', media release (23 August 2015), www.gov.uk.

vii See www.mcafee.com\cf\about\news\2013\q1\20130204-01.aspx.

viii See note 2 above.

ix See media release from the NSW Department of Justice dated 5 September 2016, accessible at: http://www.justice.nsw.gov.au/Pages/media-news/media-releases/2016/Moving-ahead-on-new-law-to-stop-revenge-porn.aspx.

x Prince Alfred College Incorporated v ADC [2016] HCA 37, 81.

xi Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA63 at [321].

xii Victoria Park Racing & Recreation Grounds Company Limited v Taylor (1937) 58 CLR 479.

xiii Ibid, 505.

xiv [2008] VSCA 236.

xv Ibid, 424.

xvi [2015] WASC 15.

xvii Ibid, 83.

xviii See article entitled 'Man shamed for trolling Clementine Ford apologises for online attack', available at http://www.smh.com.au/national/man-shamed-for-trolling-clementine-ford-apologises-for-online-attack-20150625-ghxz24.html; and 'Sydney man fired after calling feminist writer Clementine Ford a 'sl**' available at http://www.news.com.au/lifestyle/real-life/news-life/sydney-man-fired-after-calling-feminist-writer-clementine-ford-a-sl/news-story/e1179d6bd723ab6e395c1e2735e4a157.

xix See article entitled 'Deakin university journalism professor suspended without pay over tweets', available at https://www.theguardian.com/australia-news/2016/jun/07/deakin-university-journalism-professor-suspended-without-pay-over-tweets.

xx See, for example, Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25 per Dixon CJ and Kitto J, which was cited with approval by Gibbs CJ in Turner v South Australia (1982) 42 ALR 669 and O'Connor v Commissioner for Government Transport (1958) 100 CLR 225 at 229.

xxi See New South Wales v Lepore; Samin v Queensland; Rich v Queensland (2003) 195 ALR 412 at 239 per Gummow & Hayne JJ.

xxii [2015] VSCA 245.

xxiii Ibid, 45 (Warren CJ, Hansen and Kaye JJA).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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