04.01.16

Should “Revenge Porn” be made a criminal offence in Australia?


Should revenge porn be made a criminal offence in Australia?

You are in a relationship with someone for over a year. You thought he was ‘the one’ and it was only going to be a matter of time before he proposed to you. Suddenly things start going wrong. In recent months he has become suspicious of every conversation you are having with friends and goes behind your back to check your text messages. You decide to break it off. The next thing you know an intimate video that you did not even know he took of you is plastered all over the Internet.

You have just become a victim of what is otherwise known as ‘revenge porn.’ Revenge porn is the distribution of nude and sexually explicit photos posted online without consent in order to humiliate and intimidate the victim. Often revenge porn is used to blackmail the victim into giving him or her money or to stay in a relationship with the offender.

If you are a victim of revenge porn you are not alone. Earlier this year 500 Adelaide women had nude and revealing photos of themselves uploaded on a revenge porn website in the US. A recent Australian Research Council funded report reveals that one in 10 Australians have had “someone post, or sent to others, a nude or semi-nude image of them without their consent.”

Revenge porn is very common. A survey done by RMIT and La Trobe University revealed that one in ten adults “had a sexually explicit image of them sent to others without their permission, or had someone threaten to publicly share such an image.” Blogger Amy Stockwell reports that of those threats “an estimated 60 percent follow through.”

Exact figures of the number of revenge porn cases happening in Australia is not known because similar to that of sexual assault cases, victims are too embarrassed and dubious to come forward for fear of being blamed.

Revenge porn is becoming more and more popular in today’s electronic era where everyone has a smart phone and people are constantly plugging into to each other’s Snapchat stories. However, prosecuting the criminal offences of revenge porn is difficult because current legislation such as the Commonwealth law, which prohibits “using a carriage service to menace, harass or cause offence”, lacks specificity as Dr. Nicola Henry, author of Rape justice: Beyond the realm of law points out. Only a handful of countries such as: Israel, Germany, the UK, Canada and certain states in the US have passed specific revenge porn legislation.

In New Zealand new civil and criminal legislation was recently introduced barring the unauthorised distribution of intimate images.

Young adults aged 18 to 24 are particularly vulnerable to revenge porn. This alarming trend is devastating for victims and has far reaching repercussions. There are many cases around the world of teens committing suicide after someone has posted a humiliating nude image or video of them on the Internet. In 2013 a 17 year old Brazilian woman, reportedly the victim of revenge porn, committed suicide after a sex tape of her with a male and female was posted online.

Current revenge porn legislation

Victoria is the only state in Australia that currently has specific revenge porn legislation. Otherwise existing laws vary widely across the country and are too broad. Without specific revenge porn legislation, prosecutors have to piece together existing legislation if they want to try and convict someone for illegally distributing explicit videos or pictures posted online without the victim’s consent.\

News.com.au reports in their article that when it comes to revenge porn according to Dr. Nicola Henry, a senior lecturer in legal studies at La Trobe University, “we have very limited protections for invasion of privacy and very limited remedies [civil or otherwise], so for victims of revenge pornography there’s very few sanctions.” She further notes that “Australia’s current laws were not designed to deal with the harm caused by (the) publication and sharing of intimate images by everyday individuals.”

Civil Proceedings Available for Victims of Revenge Porn

Victims of revenge porn can commence civil proceedings against someone, for example under the Defamation Act 2005. However, trying to prove defamation is very complicated and expensive. Also proving damage to reputation is a crude way to deal with invasions of privacy in comparison to simply establishing legislation that deals with the release of personal information without consent.

Another problem is that going the defamation route means the victim would be put through more public humiliation during a trial process. An appropriately designed privacy complaint process would ensure the victim’s anonymity, as well as give the victim access to civil remedies such as compensation, control over the information, etc.

Damage to Reputation a Crime?

The biggest issue critics say with having no legislation specifically in place to target revenge porn is the message it gives both the victims and perpetrators. It is a message that says revenge porn is not a crime and does not deserve to be punished. Deputy-Chief Magistrate, Jane Mottley in her sentencing of revenge porn offender Ravshan Usmanov in 2012 said: “incalculable damage can be done to a person’s reputation by the irresponsible posting of information through that medium. With its popularity and potential for real harm, there is a genuine need to ensure the use of this medium to commit criminal offences of this type is deterred” and that is why many believe Australia needs revenge porn legislation.


Websites Reviewed/Referenced

http://www.abc.net.au/news/2015-10-30/action-against-distributors-of-revenge-porn-focus-nsw-inquiry/6897990

https://au.news.yahoo.com/a/28473656/500-adelaide-women-fall-victim-to-us-revenge-porn-site/

http://www.sbs.com.au/news/dateline/article/2015/07/13/factbox-revenge-porn-laws-australia-and-beyond

http://www.smh.com.au/national/government-urged-to-outlaw-revenge-porn-20150926-gjvod5.html

http://www.abc.net.au/news/2012-05-04/forbes-privacy/3989706

http://www.news.com.au/technology/online/security/lack-of-laws-around-revenge-porn-sees-offenders-go-unpunished/news-story/2955203e061050b8178a93a8f6e442b6

http://www.news.com.au/technology/online/security/revenge-porn-the-world-is-moving-on-while-australia-stands-still/news-story/7fbf6c057bba5d54dca344a26073126e

http://www.sbs.com.au/news/dateline/article/2015/07/13/factbox-revenge-porn-laws-australia-and-beyond

http://www.mamamia.com.au/the-reality-of-revenge-porn-in-australia/

http://www.buzzfeed.com/miriamberger/brazilian-17-year-old-commits-suicide-after-revenge-porn-pos#.kdEoxAVml