Cases of ‘revenge porn’ rising

In an era where smartphones and posting on social media have became commonplace, the risk of intimidation or a breach of privacy through the posting of inappropriate or embarrassing digital content has escalated.

“Revenge porn” is one emerging trend that is on the rise, in circumstances where a couple experiences an acrimonious split. The typical scenario is that one partner releases or shares with members of the public illicit photos or videos of his former partner in an attempt to humiliate or damage him or her.

But what forms of redress are available to victims?

The 2015 decision in Wilson v Ferguson (which was examined in further detail here), set out the framework for the potential recourse of a victim whose breach of confidence with their ex-partner resulted in the spiteful lover posting explicit images and video posts to social media. The Court found the plaintiff’s evidence to be credible and forthright and granted the injunction, awarding compensation and costs.

NSW Parliament takes steps to improve privacy laws

On 24 June 2015, the NSW Law and Justice Committee of the current Legislative Council called for an inquiry into and report on remedies for the serious invasion of privacy in New South Wales. The NSWLRC in Consultation Paper 1 Invasion of Privacy, May 2007, called for “An argument for the introduction of a statutory cause of action for invasions of privacy … that must be based on the inadequacy of the protection currently afforded privacy by statute and common law”.

Australia’s largest group of media organisations (a collection of Fairfax, News Corp and SBS) argued in their submission on 20 September 2015 that the existing privacy laws adequately protected individuals and did not need to be changed. However, even the NSW Council for Civil Liberties submissions on 23 September 2015 asserted that there were considerable barriers to a speedy resolution of a privacy breach that a statutory tort would not solve.

Options for redress

Until the Federal and NSW position changes, victims who wish to obtain relief from the Court will have to do it alone through privately funded litigation to seek equitable compensation, an injunction and/or exemplary damages.

Preventative measures

Streeterlaw said we all should be very cautious when providing personal details online. The obvious preventative measure is to avoid content sharing online and to be wary of providing your details via websites or apps. It is important not to trust smart phone applications that claim to limit the availability or use of content.

If you require urgent confidential advice, please contact Streeterlaw on 8197 0105, or you can email advice@streeterlaw.com.au

Written by Mark Streeter

The Director of Streeterlaw, Mark has been practicing Law since 1994. He has attained his Masters of Law in 1999 and in 2006 was awarded his Specialist Accreditation in Commercial Litigation. Mark is a member of ARITA, a graduate of the AICD and a member of AICM. A member of STEP, Mark enjoys working in the area of Wills and Estates. In 2020 Mark is the Chair of STEP NSW.

Call us on 02 8197 0105 to book an appointment with Mark Streeter!