Due to the increased availability and efficiency of technology, revenge porn is becoming increasingly common, it is no longer just being used as revenge but also to coerce or threaten a partner, to such an extent that it is classified as a form of domestic violence.[3]
"So, the questions arises: What can people do if they find themselves to be a victim of revenge porn?"
Division 15C of the Crimes Act 1900 (NSW) criminalises the recording and distributing of intimate images of a person without consent stating that ‘a person who records and/or distributes an intimate image without the consent of the person in the image, is guilty of an offence.’
This provision provides victims with extra protection against controlling behaviour in abusive relationships however special protections apply for children under 16 years of age to ensure the new offences do not inappropriately criminalise activity by, or between, young people.
In New South Wales, there are also three other legal methods people may employ to hold offenders accountable:
1.The Court of equity may be able to provide a compensatory remedy for a breach of confidential information.[4]
While equity is rarely used in cases resulting in personal injury or psychological harm, victims may be able to receive monetary damages for a breach of confidence due to the unauthorised sharing of ‘information that was obtained in circumstances importing an obligation of confidence.[5] The case of Wilson v Ferguson[6] confirmed Courts of equity to provide compensation for mental distress falling short of psychiatric injury. While this judgment appears to be a win in the fight to hold people responsible for revenge porn, it is limited in its capacity to assist such victims for two reasons:
- This is an unusual judgment as it is rare that the Courts of equity would award a plaintiff damages for psychiatric injury, nor deal with cases of such a personal nature. As a result, if this decision were to be appealed it is unlikely the higher courts would uphold it.[7]
- The rule from Wilson v Ferguson requires that the victim proceed through the civil system.[8] This means that victims will need to bring the case to trial and conduct the trial on their own, as opposed to the police prosecuting the case in criminal courts. This involves considerable expense and time, even if they are awarded costs.[9] Coupled with the emotional trauma associated with taking a case like this to Court, the time and cost makes this a route few will be able or willing to take.
2. s.578 of the Crimes Act 1900 (NSW) relating to publishing indecent material, allows criminal liability to attach to such an offence.
This provision carries with it a maximum term of imprisonment of 12 months for the publishing of indecent material. However, it is unclear whether the term ‘publish’ can be include sending the information to just one person, as in the case of revenge porn websites.[10] Further, identifying the images as indecent may encourage victim blaming. Such a term promotes the idea that the photos should not have been taken in the first place and therefore, the outcome experienced was to be expected.
3.
Using a carriage service to menace, harass or cause offence is a federal
offence under the Criminal Code Act[11]
Under
Federal legislation, it is illegal to use a carriage service to menace, harass
or cause offence.[12]
It carries a maximum penalty of 3 years imprisonment.[13] The
Commonwealth Director of Public Prosecutions submitted to the Federal
government that they believe it is not likely that this offence will cover the
situations common to revenge porn due to the necessary element of it being
‘offensive’.[14]
Further, the offence has to be conducted via a ‘carriage of service’.[15]
This would therefore not encompass online conduct but only electronic
communications.[16]
Revenge porn is a horrible crime that lays blame on the victim and lacks a means of ensuring accountability on the part of the offender. It can result in the victims living in fear, horrified and untrusting, and impact heavily on their future relationships. While the Crimes Act 1900 (NSW) has been reformed to penalise perpetrators of revenge porn to face imprisonment and/or a fine, this does not criminalise the activity where the perpetrator is under 16 years of age. The victims also have limited avenues to seek monetary damages for the psychological damage inflicted upon them.
Steven Garcia is a 4th year law student studying a Bachelor of Laws and a Bachelor of Commerce at Charles Sturt University (CSU).
FOOTNOTES
[1].
David Adsett, Commonwealth Department of Public Prosecutions, Submission No 3
to Senate Legal and Constitutional Affairs Committee, Inquiry
into the phenomenon colloquially referred to as ‘revenge porn’, 24 December
2015 , 3 [15].
[2].
Jonathan Clough, ‘Revenge Porn: Criminal law responses’ (2016) 132 Precedent
(Sydney, NSW) 30,31.
[3]. Janet
Loughman, Womens Legal Services NSW, Submission No 2 to Australian Legal and
Constitutional Affairs Commission, Inquiry into the phenomenon colloquially
referred to as ‘revenge porn’ (non-consensual sharing of intimate images), 23
December 2015.
[4]. [2015]
WASC 15.
[5].
Above n1, 22
[6]. Above
n8.
[7].
Above n1, 23.
[8]. Above
n2, 31.
[9]. Ibid.
[10]. Tom
Gotsis, ‘Revenge pornography, privacy and the law’ (Research paper no 7, Parliamentary
Library, New South Wales Parliament, 2015) 7 [4.4].
[11]. 1995
(Cth) s.474.17(1).
[12]. Ibid.
[13]. Ibid.
[14]. Above
n1, [15]
[15]. Above
n1, 32
[16]. Above
n1, [18]