Is Australia Slowly Getting Its Act Together Against Revenge Porn?

This post discusses sexual assault and harassment.

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Two years ago, Victoria became the first Australian state to legislate against revenge porn and now NSW may be about to follow their lead. Well, kind of. Last month, the NSW Standing Committee on Law and Justice released a report that recommended new laws to target serious invasions of privacy. This includes not only distribution of private photos and video without consent, but big data leaks from corporations or government bodies.

The problem is, it’s likely you’ve heard all this before. This is actually the fifth time that a law reform commission has recommended similar changes since 2008, which means a lot of time, money and expertise seems to have been wasted on this despite a pretty clear consensus on both the need for the laws and the form they should take.

The US, UK, New Zealand, Canada, Japan and the Philippines have more privacy protection than Australians currently do. Could these latest recommendations be NSW’s chance to enter the 21st Century?

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The Current Laws

The main problem with our current privacy laws is that they don’t really exist. In fact, if someone started circulating a naked picture of you against your will on Facebook tomorrow, there isn’t much you would be able to do about it. Between the state and federal laws, there’s a patchwork of legislation and cases that might lead to some measure of protection. But they’re inconsistent, and they don’t quite fit the problems digital technology poses to individual privacy.

There’s some protection under international law, including the UN Declaration of Humans Rights (1948). Article 17 of the International Convention on Civil and Political Rights (ICCPR) states that no one should “be subjected to arbitrary or unlawful interference with [their] privacy”. Australia is a signatory to both instruments, and Victoria and the ACT have used that to establish a similar right to privacy in their respective human rights frameworks. Australia could enact laws that uphold this right, and our courts could use international law to justify the expansion of common law into protecting privacy. This hasn’t happened.

South Australia does have a broad offence for distributing an “invasive image”, but Victoria is currently the only state that has specific laws criminalising revenge porn. This covers distribution of any image without consent that would be seen as unacceptable by ‘community standards’. Anyone who does so faces a maximum sentence of two years in prison. It also specifically prohibits threatening to send intimate images to coerce someone to do something. But, though these laws were only passed in 2014, they have already been criticised for being too weak to really protect anyone in practice.

In NSW, things are more vague. Someone could currently get charged for the crime of publishing “indecent articles” and, though this covers some revenge porn scenarios, the laws were not designed with this in mind. In a submission on the new laws, the NSW Women’s Legal Service even argued the term “indecent” placed blame on the victims. There’s an implication, they say, that taking intimate pictures of yourself is inherently “indecent”, when what should be prosecuted is the distribution of that image without consent. The laws also don’t take into consideration the use of the image to make threats or coerce certain behaviour.

This might be a reason why it’s barely used. This particular law has only been used to prosecute one case in which the defendant, who was dumped by his girlfriend, posted six explicit photos of her on Facebook without her consent. The maximum penalty was 12 months in prison and an $11,000 fine. He was sentenced to six months, which he served as a suspended sentence on a good behaviour bond. This might deter some people in the future, but there’s plenty more that could be done. Specific provisions would give victims clear pathways to justice and enforce logical steps such as courts ordering offenders to take images down and hand over any copies.

The proposed new reform in NSW proposes clear action and remedies for violations like this including compensation that would be made available to victims of “any serious invasion of privacy”. It’s also much broader than simply sharing intimate pictures.

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The Proposed Laws

So, what would a “serious invasion of privacy” look like? Privacy can be a tricky concept. But the proposed laws have been drafted with a few particular types of invasions in mind:

1. Intrusion upon seclusion – privacy in physical spaces

This is about getting in someone’s physical private space; you can take action against someone if your reasonable expectation of privacy is intruded upon. This would cover creeps on the bus filming up your skirt as well as any type of watching and recording of another person’s activity in a private space. Simply watching and listening to a private activity in a public space is not enough for this cause of action. It’s just good ol’ fashioned weird.

This action was used in a New Zealand case, when a man hid a camera in the bathroom of his share house to film his flat-mate showering. She found the videos on his laptop after borrowing it to watch a movie. Even though the video was never made public, the defendant was allowed to claim damages under the tort.

2. Misuse of private information – accidental leaks and other data breaches

This is for situations in which people misuse or disseminate your personal information without your permission. It’s usually when someone purposefully discloses your information without your consent, but it also covers someone getting “wrongful” access to your information in the first place.

If you consent for a company to collect your personal data for a specific purpose — say it’s your billing address and credit card number to pay for an online dating service that specifically markets itself to cheating spouses — then it’s responsible for making sure that’s how the information gets used.

The recent NSW report focuses on these ‘big data’ breaches, which involve leaks of extremely large data sets. Breaches are becoming increasingly common, and could at some point become inevitable. This tort would offer a form of redress after the breach. It would also place a greater onus on corporations and government agencies to keep your data safe.

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Why Do We Need This?

As the report notes, “privacy is an asset. Once it’s lost, it cannot be recovered.”

Say you were in your own home and took pictures in your underwear for a romantic partner. After you break up, they’re on the internet — maybe even on one of the 3,000 websites that deal in the ‘genre’ of revenge porn. Your boss sees. You lose your job.

Or, how about this: you go to your gynecologist for a routine procedure and are sedated in a private hospital. A nurse takes pictures of your genitals and shows the photo to other nurses.

Right now, in either scenario you have very few options legally. You might be able to claim damages for emotional distress in some states, including Western Australia and Victoria. But if you really want protection, you’d have to move to New Zealand, the UK, Canada or the US — all of which have specific laws against serious invasions of privacy. (Though, anyone who follows Last Week Tonight, would know the situation in the US is still incredibly patchy state-to-state).

It’s worth noting that these scenarios are not hypothetical (the second came from the recent NSW report). This is happening often, with research by criminologists and socio-legal academics suggesting one in ten Australians between 18 and 55 have had a nude or semi-nude picture of themselves sent to others without their permission. While there are no solid statistics about whether this is an issue that impacts women in particular, it certainly appears to be that way anecdotally. In the UK, the Revenge Porn Helpline took 1,800 calls in six months during 2015; a breakdown of the calls showed that 75 percent of those seeking advice and support were female. Of the 25 percent of calls from male victims, 40 percent were from queer men.

The NSW Government will need to respond to the recent report by September of this year. Unfortunately, even if they pass the laws, the rest of Australia will still be out of sync. The patchwork of laws could become even more complicated to navigate, particularly for breaches that span states. The best outcome would be for a federal law to pass, as the Australian Law Reform Commission has recommended for close to a decade.

At least this report means the discussion on a privacy tort it still open. The government has the opportunity decide whether Australia is going to join the rest of the world in re-shaping its approach to privacy protection in the digital age.

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Feature image via Chrissy Chambers — an LA woman currently trying to prosecute her ex (who filmed and posted her sexual assault online) under new revenge porn laws in the UK. You can read more or donate to her legal fund here.

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Em Meller is a writer, journalist and editor with a focus on law and digital privacy. Her work has appeared in Junkee, Overland, The Justinian and on 2SER.