How making ‘revenge porn’ a federal crime would combat its rise
In Summary
This article first appeared in The Conversation.
Federal Labor MPs Terri Butler and Tim Watts have released an exposure draft bill to address the increasing occurrence of “revenge porn”. The bill would prohibit the transmission or distribution of “private sexual material”, online or via SMS, without the consent of the person depicted in the material – as well as threatened or intended offences of this nature – with penalties of up to five years imprisonment.
Revenge porn is where a person – usually a man – shares explicit images of someone else – usually a woman – without consent in order to humiliate, shame or traumatise them. Revenge porn can devastate victims’ lives.
An age-old problem
The practice of men sharing images of women without their consent is not new. It has been a problem since the advent of photography and cinema in the 19th century. As the Ladies Home Journal warned in 1890:
Women should always know the standing of the man to whom they entrust their negatives … once in his possession (if he is so disposed), he has the means of causing them great mortification by using it for base purposes.
However, in the late 19th and early 20th centuries, “base purposes” referred to the publication of women’s images within advertisements, the pages of men’s magazines, or documentary films. Women brought cases protesting against the unauthorised use of their images. By doing so, they established the first privacy laws in the US, ahead of any other similar jurisdictions.
Now, the internet, smartphones and social media mean that extensive sharing of private images without consent is far easier. And the severity of the harm victims suffer is far greater.
Caroline Wilson was horrified and suffered acute distress and anxiety when she discovered that her ex-partner, Neil Ferguson, had posted 16 explicit photographs and two videos of her to his Facebook page following the breakdown of their relationship. The 31-year-old fly-in fly-out worker from Western Australia stopped sleeping, took unpaid leave from her employer, moved in with her parents and sought psychological counselling.
Ferguson intended to destroy Wilson, eloquently stating so in a text message:
Fkn photos will b out for everyone to see when I get back you slappa. Cant wait to watch u fold as a human being. Piece if shit u r.
The difficulties with existing laws
Wilson sued Ferguson in the WA Supreme Court for breach of confidence – one of the very few legal options available – and won.
Wilson’s action relied upon an earlier breach of confidence case brought by another woman, Alla Giller, involving the non-consensual distribution of a private sex tape by her ex-partner, Boris Procopets, in the Victorian Supreme Court.
However, civil actions are costly, protracted and involve further publicity for already humiliated victims and often great difficulties in accessing court-awarded damages from hostile and/or penniless defendants. They also do not possess the same notoriety as criminal laws, and so have a lesser deterrent effect. Few in the community would be aware of the elements of the breach of confidence doctrine.
Even existing criminal laws that have been used successfully to prosecute non-consensual pornography are not sufficient. In October 2013, two Australian Defence Force Academy cadets, Dylan Deblaquiere and Daniel McDonald, were convicted of using a carriage service in an offensive manner after they surreptitiously filmed McDonald’s sexual encounter with “Kate”, a young female cadet, and broadcast it live to a group of male cadets over Skype.
McDonald was also found guilty of committing an act of indecency without consent. These more general criminal laws, while useful, are doing little to stem the tide of revenge porn flooding the internet.
Learning from elsewhere
Specific criminal laws, and publicity about them, are needed to combat the rise of these acute and gendered privacy invasions. In 2013, South Australia criminalised the distribution of an “invasive image”. In late 2014, the Victorian parliament passed a bill that made it an offence to intentionally distribute or threaten to distribute an “intimate image”.
The UK outlawed revenge porn in February this year. To date, so have 24 states in the US. In coming weeks congresswoman Jackie Speier will introduce a bill to the House of Representatives proposing to make it a federal crime.
These legislative reforms are the latest steps in securing women’s rights in relation to their photographic and cinematic images. In 1900, a 17-year-old woman from New York, Abigail Roberson, brought a case protesting against the use of her photograph on packets of flour. She ultimately lost her case but it resulted in the first privacy laws in the state of New York and the common-law world.
In July 2015, Florida mother Lastonia Leviston used these same laws to successfully suerapper 50 Cent for invasion of privacy over his uploading of her private sex tape online.
Recognition of women’s rights in relation to their images has evolved over 100 years in the US under the tort of invasion of privacy. Australia lacks such a cause of action, despite repeated calls by the Australian, New South Wales and Victorian law reform commissions for its enactment. This would be a welcome addition to victims' legal armoury, but at present the doctrine of breach of confidence provides sufficient civil protection in most circumstances.
Revenge porn poses new and pressing threats. Specific criminal laws would provide the requisite deterrence effect and accessible justice for victims. Labor’s proposed bill deserves our attention in order to make the sharing of explicit images without consent a federal crime.