Revenge Porn in Australia- What are the Penalties?

Revenge Porn in Australia – What are the penalties?

You are in a caring relationship with someone until one day that relationship turns sour. Those intimate videos taken of you just for fun are now splashed all over Facebook for your ex-partner’s 500+ friends and followers to see.

Revenge porn like this has become a major issue today. Research shows 1 out 5 Australians report being a victim of “image based abuse.” Files retrieved from Facebook reveal that in January alone of this year the platform had to disable 5,110 accounts due to intimate images/videos being posted without the subject’s consent.

Now with the proliferation of the internet, smartphones and social media, sharing private images without consent is far easier. And due to its nature and scope, revenge porn has a much greater potential for emotional and psychological harm including having devastating consequences for the victim’s future relationships and job prospects.

However as Goldsworthy, Crowley and Raj of the Conversation argue, revenge porn is nothing new it is just a digital extension of sexual and domestic violence.

Digital communities are doing what they can to regulate online content. In 2014 Reddit banned non-consensual nude photos shared on its site in a move to protect user privacy and curb revenge porn.

Blogger and many other platforms have since similarly followed suit.  For example, in 2015 Twitter developed a policy regulating users from posting intimate photos or videos that were taken or distributed without the subject’s consent.

In 2015, Google also introduced a Public Policy to its 1.39 billion users that specifically addresses revenge porn, which includes honoring any requests from people to take down nude or sexually explicit images shared without their consent. Google admits it is a “narrow and limited policy.” However, it is a step in the right direction. Just this past May Facebook introduced its own policy regarding revenge porn.

The problem however are these types of regulations more often than not put the onus on the victim to contact the platform to take the image down. That is if he or she is lucky enough to know that an image or video has been posted. It also does not help with the fact that by the time someone knows his or her image has been posted there is a good chance that it has already been reposted, screenshotted or otherwise.

Currently there are few legal options when it comes to revenge porn. 2008 saw its first revenge porn judgement with Giller v Procopets when Procopets was charged with “intentional infliction of emotional distress” for showing a video tape of his sexual activities with the plaintiff and threatening to show it to others. The Court of Appeal awarded the victim $40,000 for injury to feelings as a result of the breach of confidence.

When deciding in this case, the appellate judges, Maxwell P. Ashley and Neave JJA, concluded that although there was no decision in Australia or in any comparable jurisdiction for this type of case at the time that did not mean the claim was “without legal foundation.” They further highlighted that these types of claims were recognised by courts in the UK and United States.

Going through this type of civil action is not only costly; it also humiliating for the victim. Especially with the amount of publicity this type of case brings to the victim. Even if the plaintiff wins, there is also the issue of trying to get the court awarded damages from a defendant who is resentful and often penniless.

The judges in the Giller v Procopets case also pointed out that “absence of affirmative Australian authority recognising such a claim means that there is an unanswered question as to whether the common law should develop in that direction.”

Federal Labor MPs Terri Butler and Tim Watts agreed and as a result released an exposure draft bill to address the increasing occurrence of “revenge porn”. The bill, which was passed in May 2017 prohibits the recording (91P) or distribution (91Q) of intimate images of a person’s “private parts” or of a person engaged in a private act either online or via another digital format without the person’s consent.  Under 91R of the amendment it is also an offence to “threaten to record or distribute intimate images.”

Penalties for Revenge Porn

The laws regarding revenge porn could involve one or more of the following aspects

• an existing or previous relationship;
• an intent to cause harm;
• the unauthorised public release of intimate images; and
• the act is facilitated by technology.

In South Australia the maximum penalty for distributing an invasive image of another person without his or her consent under the Summary Offences Act 1953, Sect 26C is $10,000 or imprisonment for 2 years. The penalty goes up to $20,000 or imprisonment for 4 years if the person is under 17 years old.

In October 2014, Victoria amended the Summary Offences Act 1966 (Vic), and the Crimes Act 1958 (Vic), to include new offences of distribution of an intimate image (s. 41DA) and threat to distribute an intimate image (s. 41DB).

NSW is also cracking down on people who post sexually explicit images of ex-lovers online under the new Crimes Amendment (Intimate Images) bill. Offences charged under this category could result in a maximum three year jail sentence and/or a fine of $11,000.

Under this new law, the courts have also been given “take down power,” in which offenders will be ordered to destroy the revenge porn and prevent it from being republished. If the defendant refuses, Attorney-General Mark Speakman told ABC News, “an additional two-year jail sentence and a $5,500 fine would be enforced.”

Critics question whether these new measures against revenge porn will be enough of a deterrence or if they will give rightful justice to victims. The Federal Government agrees and has called for public submissions on developing civil penalties for not only the perpetrators who upload the images but also the websites that host them.

Michaelia Cash, Minister for Women, in a statement believes that penalising perpetrators and the sites which host this content “send[s] a strong message that this kind of behaviour will not be tolerated.”