It seems like every other day we are hearing stories in the news of young girls taking their lives because their nude photos were plastered online without consent. We hear about celebrity nude photo hacks. We hear about government ministers in the Northern Territory embroiled in revenge porn scandals. More recently, the target has hit closer to home, with school students from over 70 Australian schools caught in a pornography ring, featuring thousands of non-consensual sexually explicit images of young girls.
The news is dominated by instances of ‘revenge porn,’ that is, the distribution of sexually explicit or intimate images of another person without consent, usually by ex-lovers. But we rarely hear about ‘parasite porn’ which is when ordinary images are taken from a person’s social media site and posted on threads in a pornographic site, usually alongside offensive and objectifying comments. In other words, you might not have taken a single sexually explicit photo of yourself- but you’re still not immune from being the target of sexual cybercrime.
We also rarely hear about ‘morphed porn’ where ordinary images are manipulated and superimposed on naked bodies and posted on porn sites. The bottom line is that in today’s age of technology, while revenge porn may be on the rise, it is not the only issue compromising our personal privacy.
There has been some talk that law-makers should re-name and categorise revenge porn, parasite porn and morphed porn into what is known as image-based sexual assault. I’d argue that the categorisation of ‘image-based sexual assault’ is preferable as it would encompass a broader range of sexual cybercrimes.
It is very important to know, that while young women are the primary targets of such invasions of privacy, anyone can fall victim to sexual cybercrime – yes, even males. I know of one case, where a guy had dressed up as an animal for a costume party, later to find it on one of those furry fetish porn sites.
So what laws, if any, are in place to protect our personal privacy in this digital age?
Well, the law has not caught up with advancements in technology and unfortunately Australia is yet to criminalise revenge porn. There are only two state jurisdictions, South Australia and Victoria that have implemented revenge porn legislation. For example, in Victoria it is an offence, punishable by up to two years imprisonment, to maliciously distribute, or threaten to distribute, intimate images without consent. However, these criminal provisions have been criticised for being too ‘weak’ a punishment for perpetrators and too ‘broad’ in scope to capture the harm caused by revenge porn.
Since the majority of Australian states have not criminalised revenge porn, victims have to predominantly rely on civil actions to seek redress for invasions of personal privacy, possibly copyright or defamation proceedings. However, contrary to popular opinion, a general tort protecting personal privacy does not exist in Australia. As such, courts have tried to fit cases involving circumstances of ‘revenge porn’ into existing causes of action. As a result, what we have ended up with is a quasi-privacy tort, namely an equitable action for breach of confidence that was set out in the notable personal privacy case of Giller v Procopets.
The recent case of Wilson v Ferguson applied the principles set out in Giller v Procopets and relied on an action for breach of confidence in circumstances of ‘revenge porn.’ In this case, Ferguson and Wilson were involved in sexual relations and shared sexually explicit photos and videos of each other during their relationship. When the relationship ended Ferguson posted the intimate photos of Wilson to Facebook for public viewing without consent. Wilson was left severely emotionally distressed.
But is this quasi-privacy tort effective in dealing with the rise of revenge porn?
Firstly, this quasi-privacy protection fails to effectively punish perpetrators, and deter future incidence of sexual cybercrimes. Given that the harms felt by victims of sexual cybercrime are significant: as victims are more vulnerable to suicide; others experience stalking, depression, emotional distress and humiliation; for some it has affected their employability and others have lost their jobs. Is it really enough to simply award an injunction and provide monetary compensation to victims under this quasi-privacy protection?
Such harms warrant the criminalisation of revenge porn and the imprisonment of perpetrators. Criminalising revenge porn would serve to provide stronger punishments to perpetrators and would deter future incidence of sexual cybercrimes.
Additionally, this quasi-privacy protection in Australia fails to provide adequate justice for victims. It is somewhat paradoxical that civil actions intended to protect our personal privacy, doesn’t necessarily achieve this outcome- because an action for breach of confidence means that victims may not remain anonymous, unlike the protection that criminal prosecution affords. In fact, victims may be reluctant to seek civil redress because it is extremely timely, costly and emotionally taxing for already vulnerable victims and may increase publicity of the photos.
But even if Australia’s laws were to change – there are inherent problems for lawmakers in addressing these issues due to the nature of the digital landscape:
- There are difficulties in enforcement and punishing perpetrators, especially where sites are run outside of Australia.
- Once an image is online it can be very hard to remove because images can be shared instantaneously all over the internet and before the law can step in much of the damage is already felt by the victim.
- There are difficulties in detecting intimate photos as quite often victims are not aware that their intimate photos have been posted online and by the time the victims become aware that their intimate photos have been posted, the images have gone viral making its removal near impossible.
In America, the situation is quite different. Already around 34 states have revenge porn legislation. Most revenge porn legislation in America is based on the New Jersey or the Californian models, both differ significantly. For example, in New Jersey, it is a crime, punishable by up to 5 years’ imprisonment, to disclose any photograph, film, videotape… of another person whose intimate parts are exposed or who is engaged in a sexual act without consent. Unlike New Jersey, California’s revenge porn law requires there be an intent to cause serious emotional distress and that the depicted person suffers serious emotional distress.
For Australia, all hope is not lost. In late 2015, Tim Watts MP introduced a Private Members’ Bill in the House of Representatives that would criminalise revenge porn, although it wasn’t passed into law. In March 2016, the NSW Legislative Council Standing Committee on Law and Justice released a report on serious invasions of privacy and on September 5 2016, NSW Attorney-General Gabrielle Upton announced that the NSW Government will seek to criminalise revenge porn.
However, deciding to criminalise revenge porn is just one step in dealing with this issue. For NSW and the rest of Australia, questions arise as to what this new law would prescribe: Would the penalties be stronger than two years’ imprisonment as set out Victoria and South Australia or closer to 5 years like the American models? How will it try to reconcile the inherent problems of enforcement and the removal and detection of photos? Will this new law also capture instances of ‘parasite porn’ or ‘morphed porn?
So, how do you find out if you’re the victim of sexual cybercrime? A simple Google Image Reverse Search is a start to see if any of your photos are anywhere on the internet. If, however, you find that there are images of yourself on pornographic sites without your consent- Google now allows you to request the removal of photos or videos on Google search results. We’ve waited a long time for revenge porn legislation but at least now the future is looking promising for Australia.
Written by Noelle Martin. A version of this article has previously been published in The Brief- The Macquarie University Law Society Publication.