Revenge porn perpetrators to be criminally prosecuted in NSW

The widespread use of smartphones and social media has led to an increasing number of cases of ‘revenge porn’ in recent years.

Revenge porn is the term used for the internet distribution (usually via texting or social media, eg. Instagram, Facebook and SnapChat) of intimate and sexually explicit images or videos without the consent of those involved.

The rise in this kind of serious invasion of privacy led the NSW Attorney-General Gabrielle Upton to recommend last September that NSW create laws to criminalise revenge porn.

This would mean that anyone caught posting ‘revenge porn’ on the internet could face jail time. It is understood that protections will be put in place for children and teenagers caught up in ‘revenge porn’ cases because currently teenagers in NSW can be charged with child pornography for ‘sexting’.

Streeterlaw shares some experiences with clients seeking justice for offences of ‘revenge porn’.

NSW to follows in Victoria and South Australia’s footsteps 

In September 2016, NSW decided to follow in the steps of South Australia and Victoria that have specifically criminalised ‘revenge porn’, with penalties that include $10,000 fines and jail terms for up to two years for the distribution of such images.

The NSW Attorney-General Gabrielle Upton said: “No one has the right to share explicit photos without consent, and new laws will protect people and make it clear this kind of behaviour is totally unacceptable.”

A common story of revenge porn in NSW

Jane and Dan are university students who were in a relationship for nine months, however Dan was extremely upset when Jane decided to go on exchange overseas and end their relationship. During the course of their relationship, Dan and Jane sent images to one another using social media site SnapChat. Jane sent images of herself to Dan at Dan’s request. However, without Jane’s knowledge, Dan took a screenshot of those images on his iPhone and kept copies of them.

Jane told Dan on a number of occasions that she wanted all the photos deleted and Dan had told her he had done so. Jane’s parents were looking up photos of their daughter on social media while she was on exchange and discovered intimate photos of her in compromising positions, which had been uploaded with her name tagged.

Jane’s parents then contacted Streeterlaw to ask for ways for these photos to be removed. They had also received abusive threats regarding Jane via an email account.

 Legal repercussions when revenge porn is criminalised

The implementation of specific criminal offences in NSW for circumstances similar to the above story would mean that such acts could be specifically reported to the relevant police department to enable criminal charges to be laid. Following that, the victim and the victim’s family could make a statement to the police.

Current civil laws in NSW

In NSW, cases of ‘revenge porn’ can be pursued under Section 578C(2) of the Crimes Act 1900 (NSW), which provides that “a person who publishes an indecent article is guilty of an offence.”

The maximum penalty is $11,000 or imprisonment for 12 months (or both).

One of the challenges under this law is that there is currently no specific definition of “indecent”, although the test used would be what is “reasonable, ordinary, decent-minded but not unduly sensitive to a person”.

A convicted perpetrator of revenge pornography under Section 578C(2) may receive a Compensation Order directing the offender to pay compensation to the aggrieved person for any loss sustained through or by reason of the offence. Examples of this loss may include counselling expenses and a loss of earnings. For many victims, this is of little consolation.

Streeterlaw’s experience of ‘revenge porn’ cases

The Streeterlaw Fraud Department has dealt with a number of similar cases which involve the use of the following remedies:

• Tort of Intimidation – is when (intimate) content is used to threaten and take unlawful action against another party unless the other party does something. This has the intention of injuring third parties. In these circumstances, the subject of the intimate content can seek an injunction or damages against the perpetrator for the ‘Tort of Intimidation’.

• Breach of Confidence – this is an equitable remedy where the Courts would order the removal of offensive images, video and information from websites and social media accounts.

The elements of a breach of confidence are commonly understood to involve:

1. The information must be of a confidential nature.
2. The information was communicated or obtained in circumstances that imply it would be confidential.
3. There was an unauthorised use of the information.

Key lessons:

• Parents should discuss with their children the repercussions of using social media and limit their use of image sharing.

• Couples should also set parameters for their relationships regarding forms of “sexting” and should remember that any digital images or files can be uploaded to any online site around the world.

For more information about similar cases and circumstances, please read: Cases of ‘revenge porn’ rising, Blackmail cases on rise and Social media tips for separating parents.

If you require confidential advice, please contact our Commercial Litigation team on 8197 0105 or 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!