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Technology as an Enabler: 'Revenge Porn' and the Law

Technology as an Enabler:  The New Revenge Porn Laws

 

 

Madeline Verge

Bachelor of Laws (Australian National University)


 

Introduction

 

Revenge porn is a rapidly emerging issue in many countries around the world including both the US and Australia. [1] While term ‘revenge porn’ can be used fairly broadly, this essay will focus on the act of an individual publishing a nude photo they either took of, or were sent by, the subject of the photo without their permission. The phenomena has is becoming increasingly common due to technological advances. Whereas in the past a person may have given their partner a nude image in a physical form (such as  a polaroid), today such photos are commonly sent as a digital file that can easily be replicated and shared. As technology evolves, so must the law in an effort to keep up by recognising ‘new rights… to meet the demands of society’.[2] Therefore, this threat to privacy necessitates the advancement of both civil and criminal laws.

The prevalence of ‘revenge porn’ in Australian society was highlighted last year when news.com.au exposed a website over which 2000 nude images of young women had been traded.[3] The privacy of those depicted was further jeopardised by the fact that many of the images had personal details attached such as the names of those depicted and the educational institutions they attended,  with over 70 Australian schools and university residential halls named.[4] Indeed, a survey has found that the prevalence of the phenomena in Australia is even higher than in the US with a recent survey of 3,000 Australians finding that 10% of Australian adults have had a semi-nude or nude image of themselves either posted online or sent to someone without their permission.[5] Similarly, an American study has found that 10% of individuals have had a former partner threaten to disperse nude or embarrassing photos of them online with approximately a 60% rate of the individuals following through on the threat.[6]

Advances in technology have effectively given abusers extra means to use to perpetuate their abuse in a manner that fully encompasses their victims’ lives.

The key academics advocating for the criminalisation of revenge porn rightly classify it as a highly gendered form of sexual abuse,[7] with 90% of victims being female.[8] It can also be categorised as an emerging form of domestic violence by existing definitions of the term.[9] This is because holding or distributing these nude images can be used ‘to further maintain power and control over the victim’.[10] In this way, advances in technology have effectively given abusers extra means to use to perpetuate their abuse in a manner that fully encompasses their victims' lives. Revenge porn can have a vast impact on many aspects of an individual’s life ranging from adverse impacts on one’s career to devastating harming mental health, with a number of suicides already attributed to the phenomena.[11] As such, revenge porn should be treated analogously with other acts of domestic violence by being targeted with both criminal and civil remedies.

Criminal Penalties for Revenge Porn

Why does revenge porn need to be criminalised?

Deterrence is the most important reason as to why revenge porn must be criminalised. There is expressive value in criminalising revenge porn as it sends a message to potential offenders that such an act is not acceptable.[12] Indeed, currently perpetrators of revenge porn do not necessarily view their actions to be wrong.[13] Legislating against revenge porn would have a significant socio-political force in changing this perception. Danielle Keats Citron draws a parallel between the attitudes currently surrounding online crime and the attitudes which originally surrounded workplace harassment.[14] At first, creating policy around sexual harassment in the workplace was very difficult because there was a general acceptance that sexual harassment was a natural complication of having women in the workplace.[15] In both cases a burden was originally placed on the victim to simply remove herself from the situation, either by finding a new job, or by turning off the computer. Citron argues that by making legislation directly targeting such actions it was begun to be seen as a wrong, illegal act and therefore there was a reduction in workplace harassment.[16] Indeed, Citron argues that ‘due to the internet’s relative youth’, it is essential that laws are made quickly as it is ‘an auspicious time to combat the trivialisation of cyber gender harassment before it becomes too entrenched’.[17]

Furthermore, civil law would be inadequate by itself to either protect potential victims or as a remedy to people who have already been victimised, for many reasons. Firstly, financial resources would restrict access to civil action for victims who do not have the financial means to get legal representation or the technical expertise to litigate such conduct and will be pointless unless the offender has the financial resources to compensate the victim.[18] Secondly, as Jonathon Clough argues, ‘civil actions do not carry the public condemnation and sanctions which are arguably warranted in such cases’ as opposed to criminal law.[19] Thirdly, victims may worry that protracted litigation will ‘further exacerbate the sense of humiliation associated with the unauthorised distribution’.[20] Potential perpetrators who are very well-off will not be deterred or punished through civil cases, as unless the financial penalty is something one needs to consider, one is free to continuously reoffend.

Lastly, the huge impact the act of posting revealing photos of another person without their consent to do so can have on that person is necessarily morally repugnant: the victim is forever associated with images online that cannot be removed and often have their name, phone number and address attached. The distribution or threat to distribute revenge porn should be considered analogous to other crimes that hurt people and cause them to feel fear such as other forms of domestic violence and criminal areas of harassment such as stalking.  

To what extent is revenge porn criminalised?

In Australia anti-revenge porn legislation exists only in the criminal codes of three states.[21] Victoria was the first to pass specific laws targeting revenge porn and did so in 2014, followed by South Australia in 2016, [22]  and New South Wales in August 2017.[23] In each of these jurisdictions the offence carries a maximum penalty of two years in prison.[24] Other states cover revenge porn under child pornography charges insofar as the victim was under 18 years of age when the photo was taken.[25] However, few offenders have been convicted under any of these laws so far.

Nonetheless, there have been instances where prosecutors have successfully pursued offenders for acts of revenge porn under older laws. Indeed, ‘the first social networking conviction in Australian history’ occurred in 2012.[26] This involved Ravhan Usmanov being convicted and sentenced to a six-month suspended sentence in New South Wales for ‘publishing an indecent article’ under s578C of the Crimes Act 1900 (NSW).[27] In this case it was decided that publishing six photos on Facebook of his ex-girlfriend ‘nude in certain positions and clearly showing her breasts and genitalia’, qualified as an ‘indecent article’.[28]  In her sentencing, Deputy-Chief Magistrate Jane Mottley flagged the need for revenge porn to be curbed as “incalculable damage can be done to a person's reputation by the irresponsible posting of information through [the internet]” and the explicit intention to hurt behind most similar actions.[29]

 

Civil Remedies for Revenge Porn

Why must there be civil penalties for revenge porn?

Criminalisation of revenge porn alone is inadequate because while criminal law punishes the offender, it does not compensate the victim.[30] The very purpose of tort law is to correct acts of injustice performed by one party against another Indeed ‘civil law remedies serve two purposes: to repair the damage and to compensate the victim monetarily for the value of the damage caused.’[31]

In this case the effects of revenge porn are large and deeply personal. The costs of being a victim of revenge porn can entail lost earnings, the cost of psychological support and also the harm of mental suffering in itself. It would be unjust to force a victim to pay for these costs, especially when someone has been found to have performed a crime against them. The mere fact that someone has been punished by the criminal justice system is likely to be of little comfort to many in this situation, especially when one may be facing unemployment and mental health issues from their private photos being made public. Thus, the offender should also be liable for compensation to extent to which they harmed the victim in order to restore them to the state they were in before their action. This could take the form of the costs of lost earnings, psychological support and other harms. 

 

What protections currently exist in civil law?

While there are not yet any specific civil law protections against revenge porn in Australia, lawyers have managed to successfully creatively apply legal precedent to new unseen scenarios involving technology. These cases show the value of the adaptable nature of our common law system to deal with emerging areas of law before parliaments are able to become alert to an issue, debate it and legislate. 

A recent decision in the Supreme Court of Western Australia has given precedent for civil suits in revenge porn cases to find remedy under the law of equity.[32] The case, Wilson v Ferguson,[33] involved the respondent uploading sixteen explicit photos and two explicit videos of his ex-girlfriend on Facebook along with ‘boorish comments’ to his 300 Facebook friends, many of whom worked at their mutual place of employment.[34] The victim obtained an injunction preventing the images and videos being published and an order for payment of an amount deemed to be equitable compensation which was AUD$48,404.[35] This involved the nearly three months the victim had to take off from work and her inability to sleep without sleeping pills.[36] The trial judge held that there were three essential elements that the circumstances had to fulfil in order to be successful for an action in equity for a breach of confidence.[37] They were as follows, that (1) the information was of a confidential nature and (2) it was communicated or obtained in circumstances importing an obligation of confidence and (3) that there was an unauthorised use of the information. It is highly likely that many situations of revenge porn could fulfil these criteria and succeed in a similar action with this precedent.

In the US revenge porn has been pursued under copyright law.[38] The ability to do so is contingent on the image being taken by the subject themselves (i.e. is a ‘selfie’).[39] Indeed, a study has found that 80% of images in revenge porn are ‘selfies’ and therefore would qualify for protection under copyright legislation.[40] This could similarly be a successful argument in Australia however, it is yet to be attempted.[41] This alone is not enough to combat revenge porn, as 20% of victims remain unprotected. However, it could be a way for some victims to get a degree of justice while the law is catching up with technology.

How do the Australian and American experiences of Revenge Porn differ?

Entrenchment of the Right to Free Speech

It has been argued that criminalising revenge porn would conflict with the guarantees of free speech and press in the First Amendment of the United States Constitution as it would potentially qualify as a content restriction.[42] If deemed a content restriction in order for it to pass, it must pass ‘strict scrutiny’. The US Supreme Court has stated that ‘it is rare that a regulation restricting speech because of its content will ever be permissible’.[43] Indeed, in 2014 in Arizona, a revenge porn law was put on hold after a civil rights group sued over constitutional grounds.[44] The law, however, was reworded in a more specific manner adding the elements of intent to harm and that the victim must have had a reasonable expectation of privacy.[45] It is now expected to withstand constitutional challenge.[46] Therefore, it is likely that criminalisation in the US is unfortunately limited to a very specific offence.

The costs of being a victim of revenge porn can entail lost earnings, the cost of psychological support and also the harm of mental suffering in itself

This potential limitation is also being challenged in cases such as United States v Osinger.[47] In this case the defendant was convicted of cyber-stalking for acts including the creation of a Facebook page in which he posted ‘suggestive and explicit photos’ of his ex-girlfriend.[48] This case posed the question of whether revenge porn perpetrators are always protected under the First Amendment of the United States’ Constitution.[49] In this case the Court upheld the decision against a First Amendment challenge, which argued that the Facebook page should come under constitutional protection as free speech.[50] It did so on the basis that the defendant’s act involved conduct rather than speech and the speech that existed was ‘integral to criminal conduct’ which resulted in it not being protected by the First Amendment.[51]

Australia escapes this situation because it does not have a Bill of Rights so there is no such entrenched rule that would prevent criminalisation of revenge porn in this manner. The High Court has recognised an implied freedom of political communication, but this is limited to political matters.[52] Therefore, the only situation that could potentially be challenged is perhaps prosecution of a person who has published revealing images of a politician or public figure. However, despite the restrictions of the US’s First Amendment, legal creativity has resulted in convictions and successful civil claims. This highlights the need for Australian lawyers to take innovative approaches in the interim before civil and criminal legislation is directed specifically at revenge porn.

 

A Tort of Privacy

Unlike Australia, the US recognises a tort of privacy with four specific causes: intrusion of solitude, the public disclosure of private facts, false light and appropriation.[53] The two that are most relevant to instances of revenge porn are public disclosure of private facts and false light. While Justin Pitcher believes that ‘privacy torts are prevalent bases for claims under which the victims of revenge porn seek redress’, he contends that the torts in themselves are not sufficient[54] on the basis that if a claim of a violation of privacy is to be successful, a victim must have had a reasonable expectation to have privacy.[55]

This suggests that one must have a reasonable assumption that revealing images will be kept private if given to a partner. Indeed, 94% of Americans surveyed, believed that ‘their data and revealing photos are safe in the hands of their partners’.[56] This could be taken to indicate a clear lack of consent from the average person for their image to be further published when consent exists for a partner to have that image.[57] While some jurisdictions may decide that this reasonable expectation does exist, others such as the courts in Florida have already decided that it does not.[58] This court stated that the two minors involved in the case had ‘no reasonable expectation that their relationship [would] continue and that the photographs [would] not be shared with others intentionally or unintentionally’.[59]

Indeed, a privacy tort seems to be a highly suitable civil solution to revenge porn and should be adopted by Australia. Conveniently, the High Court has left open the possibility for such a development in the 2001 case Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd.[60] In the aftermaths of this decision, two lower court decisions have recognised a tort of invasion of privacy Grosse v Purvis,[61] and Doe v Australian Broadcasting Corporation,[62] however both these cases were settled before their respective appeals so no appellate court has had the chance to confirm the existence of such a tort.[63] Similarly  the Lenah decision referred to a developing tort of harassment.[64] Indeed, in addition to recommending a statutory cause of action for breach of privacy, the Australian Law Reform Commission has recommended this does not eventuate, uniform legislation should be created for a statutory tort of harassment.[65]

 

Regulating online operators

Given the prevalence of revenge porn on websites designed solely for that purpose, it would be more efficient to target the operators of these sites than the individuals who post on them. However, legal commenters have largely concluded that those who operate revenge porn websites in the US are protected from liability due to Section 230 of the Communications Decency Act 1996 which provides immunity to operators of websites for the content hosted on their sites.[66] However, no court has yet ruled on this.[67] Zak Franklin suggests that there are two possible arguments that could be made in order for the content hosts to be found liable[68]: that the operator solicited the material and is therefore responsible or, in the case that there was original material added by the operator, that they ‘contributed to the illegality of the post.’[69]

In Australia, there is scope for a law banning these websites to be created under the telecommunications power of s 51(v) of the Constitution.[70] However, the Commonwealth’s ability to legislate under the telecommunications power is limited to conduct committed using a ‘carriage service’.[71] While this currently encompasses images sent through mobile phones and the internet, as technology develops, offenders may find other means to distribute revenge porn that do not qualify under this legislative restriction. In this case the law would hopefully once again find a way to adapt to the new technological context.

Conclusion

 Ultimately the legal systems in both the United States and Australia have not evolved sufficiently quickly in order to combat the ramifications of rapidly evolving technology. While the fact that three Australian jurisdictions have recently introduced criminal laws targeted at revenge porn is promising, there is still unfortunately a long way to go. Inevitably, as soon as the law catches up with current forms of online crime, technology’s continued evolution will have caused new forms to emerge.

 

 

References

[1] Elisa D’Amico, ‘The War to Stay Secure: Online Privacy and the Battle in the Civil Courts against Sexual Cyberharassment’ (2015) 41(4) Human Rights 5, 6.

[2] Samuel Warren and Louis Brandeis, ‘The Right to Privacy’ (1890) 4 Harvard Law Review 193, 193.

[3] Nina Funnel, ‘Exclusive: Students from 71 Australian schools targeted by sick pornography ring’, News.com.au (online), 17th August 2016 <http://www.news.com.au/lifestyle/real-life/news-life/students-from-70-australian-schools-targeted-by-sick-pornography-ring/news-story/53288536e0ce3bba7955e92c7f7fa8da> and Linnea Burton-Smith, ‘Demeaning Treatment of Women Continues at the ANU’, 19th August 2016 <http://www.woroni.com.au/news/demeaning-treatment-of-women-continues-at-the-anu/>.

[4] Ibid.

[5] Anna Bunn, ‘Non-consensual online publication of intimate images: Civil Remedies’ (2016) 132 Precedent 25, 26.

[6] Zak Franklin, ‘Justice for Revenge Porn Victims: Legal Theories to Overcome Claims of Civil Immunity by Operators of Revenge Porn Websites’ (2014) 102(5) California Law Review 1303, 1310 and Justin Pitcher, ‘The State of the States: The Continuing Struggle to Criminalize Revenge Porn’ (2015) 5 Brigham Young University Law Review 1435, 1439.

[7] Danielle Keats Citron and Mary Anne Franks, ‘Criminalizing Revenge Porn’, (2013) 49 Wake Forest Law Review 345, 362.

[8] ibid 353.

[9] ibid 351.

[10] Laurie Baughman, ‘Friend Request or Foe? Confirming the Misuse of Internet and Social Networking Sites by Domestic Violence Perpetrators’ (2010) 19(3) Widener Law Journal 933, 941.

[11] Rachel Budde Patton, ‘Taking the Sting out of Revenge Porn: Using Criminal Statutes to Safeguard Sexual Autonomy in the Digital Age’ (2015) 16 Georgetown Journal of Gender and the Law 407, 419.

[12] Danielle Keats Citron, ‘Law’s Expressive Value in Combating Cyber Gender Harassment’ (2009) 108 Michigan Law Review 373.

[13] ibid, 377.

[14] ibid 393.

[15] ibid 376.

[16] Ibid.

[17] ibid 376.

[18] Jonathon Clough, ‘”Revenge Porn”: Criminal Law Responses’ (2016) 132 Precedent 30, 31.

[19] ibid.

[20] ibid.

[21] Emma Ryan, ‘NSW Government Cracks Down on “Revenge Porn”’, Lawyers Weekly (online), 8th September 2016 < http://www.lawyersweekly.com.au/news/19519-nsw-government-cracks-down-on-revenge-porn>.

[22] Clough, above n 18, 31.

[23] New South Wales Government, Revenge Porn is a Crime: Perpetrators of intimate image abuse now face a maximum sentence of three years jail and an $11,000 fine (25th August 2017) < https://www.nsw.gov.au/news-and-events/news/revenge-porn-is-a-crime/>.

[24] New South Wales Government, Revenge Porn is a Crime: Perpetrators of intimate image abuse now face a maximum sentence of three years jail and an $11,000 fine (25th August 2017) < https://www.nsw.gov.au/news-and-events/news/revenge-porn-is-a-crime/>, Emma Ryan, ‘NSW Government Cracks Down on “Revenge Porn”’, Lawyers Weekly (online), 8th September 2016 < http://www.lawyersweekly.com.au/news/19519-nsw-government-cracks-down-on-revenge-porn>.

[25] ibid.

[26] Heath Aston, ‘Ex-Lover Punished for Facebook Revenge: People Can Now be Held Accountable for their Actions on Social Media’, The Sydney Morning Herald (online), 22nd April 2012 < http://www.smh.com.au/technology/technology-news/exlover-punished-for-facebook-revenge-20120421-1xdpy.html>.

[27] Clough, above n 18, 31 and Usmanov v R [2012] NSWDC 290.

[28] Aston, above n 26 and Usmanov v R [2012] NSWDC 290.

[29] Aston, above n 26.

[30] D’Amico, above n 1, 6.

[31] Patton, above n 11, 421.

[32] Geoffrey Hancy, ‘The Law of Equity, the Information Age and Revenge Porn’ (2015) 42(6) Brief 20, 20.

[33] [2015] WASC 15.

[34] Hancy, above n 32, 22.

[35] ibid 21.

[36] ibid 22.

[37] ibid, 21.

[38] Justin Pitcher, ‘The State of the States: The Continuing Struggle to Criminalize Revenge Porn’ (2015) 5 Brigham Young University Law Review 1435.

[39] ibid.

[40] ibid 1435.

[41] Bunn, above n 6, 26.

[42] John Humbach, ‘The Constitution and Revenge Porn’ (2014) 1(8) Pace Law Review 215, 217.

[43] ibid, 224.

[44] Shawn Hamp, ‘Arizona Enacts “Revenge Porn” Law’ Law Offices of Shawn B. Hamp (online), 13th March 2016 < http://www.hamplaw.com/arizona-enacts-revenge-porn-law/>.

[45] ibid.

[46] ibid.

[47] United States v Osinger 754 F.3d 939 (9th Cir. 2014).

[48] Patton, above n 11, 439.

[49] United States Constitution amendment I.

[50] Patton, above n 11, 439.

[51] ibid.

[52] Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106.

[53] Pitcher, above n 38, 1435.

[54] ibid.

[55] ibid.

[56] ibid.

[57] ibid 1439.

[58] ibid 1443.

[59] A.H v State, 949 So. 2d 234, 237 (Fla. Dist. Ct. App. 2007).

[60] Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 199.

[61] Grosse v Purvis [2003] QDC 151.

[62] Doe v Australian Broadcasting Corporation [2007] VCC 281.

[63] The Australian Law Reform Commission, Overview of Current Law: A Common Law Action for Breach of Privacy in Australia? (31st March 2014) The Australian Law Reform Commission <https://www.alrc.gov.au/publications/3-overview-current-law/common-law-action-breach-privacy-australia>.

[64] Bunn, above n 6, 26.

[65] ibid.

[66] Franklin, above n 3, 1305.

[67] ibid.

[68] Franklin, above n 3, 1305.

[69] ibid.

[70] Clough, above n 18, 32.

[71] ibid.