The Need for Unity in the Fight Against Revenge Porn

By Ashley Ambesi

As our professional and social interactions steadily migrate to the digital realm, the need to protect our online reputations and individual privacy against malicious uploads becomes increasingly urgent.

The phenomenon known as “revenge porn” wherein intimate, often sexual, images or videos are uploaded to social media to humiliate, embarrass or harass those depicted has exploded with the popularity of smart phones and social media applications.

A recent Australian Law Reform Commission Inquiry noted that the non-consensual sharing of intimate material is “an example of an outrageous invasion of privacy” and one which is not adequately recognised or protected by Australian law. While much recent legal discourse has focussed on child pornography and harassment stemming from practices such as “sexting” among teenagers, the issue of revenge porn and its affect on adults is relatively unexplored.

The psychological, social and economic impacts of revenge porn can be devastating; victims may experience loss of career prospects and social relationships, ongoing mental health issues and emotional distress.

Public shaming becomes a nightmare of permanent humiliation if the images ‘go viral’ and are virtually impossible to completely remove. The cooperation of online platforms is essential to stop the spread of material to a larger audience. Victims frequently lack substantial support in executing takedown requests by sites that are unresponsive or unwilling to take action. Major social media websites, such as Facebook, Twitter and Reddit have recently taken an active stance against revenge porn in updated user policies.

Facebook altered its Community Standards two months ago to specifically target “images shared in revenge or without permission of the people in the images”, categorising the act as a form of sexual violence while anonymous message board Reddit has condemned the practice as “involuntary pornography” and promised swift removal.

Notably, the ALRC has recommended that online intermediaries only incur liability from the time they have knowledge of revenge porn, not the time of its presence online. This is partly due to difficulties in differentiating non-consensual images from legitimate freedom of expression, which has been recognised in recent amendments to the Summary Offences Act 1966 (Vic). Consent must be determined during the image’s creation, capture, sharing and subsequent third-party use. Revenge porn presents the novel legal issue of initially consensual creation of images followed by non-consensual distribution.

Victoria and South Australia have recently passed legislation criminalizing the non-consensual distribution or threatened distribution of intimate material. However, with no adequate legislation, revenge porn victims in other States are seeking redress via the equitable doctrine of breach of confidence. Earlier this year a Western Australian revenge porn case sought to rely on a landmark Victorian decision wherein equitable compensation was awarded despite the victim suffering distress and humiliation but no other loss after a former partner shared sexual videos to her close friends and family. The recent decision of the Supreme Court of Western Australia in Wilson v Ferguson, in affirming Giller v Procopets and granting compensation, emphasised that a factor in its decision was that the defendant had acted out of retribution and had intended to cause harm.

While equity has intermittently provided redress where the common law has fallen short, it is not sufficient to protect victims from the growing problem of technology-facilitated harassment. Uniform nation-wide legislation should be adopted by every State in order to expressly condemn the behaviour, minimise harm and provide effective assistance for victims.

Ashley Ambesi is currently completing a Bachelor of Laws (Graduate Entry) at La Trobe University

Suggested Citation

Ashley Ambesi, ‘The Need for Unity in the Fight Against Revenge Porn’, Law and Justice, 8 June 2015 (La Trobe Law School Blog, http://law.blogs.latrobe.edu.au/)

Marc Trabsky