Bunn, Anna --- "Non-consensual online publication of intimate images: civil remedies" [2016] PrecedentAULA 7; (2016) 132 Precedent 25

NON-CONSENSUAL ONLINE PUBLICATION OF INTIMATE IMAGES

CIVIL REMEDIES

By Anna Bunn

The issue of non-consensual online publication of intimate images (including the phenomenon of ‘revenge porn’) provides a lens through which to evaluate the Australian legal response to ‘privacy’ harms inflicted via the internet.

While various criminal offences may lie in respect of non-consensual publication of intimate images, a victim of the non-consensual publication has few civil remedies available. This article briefly considers those civil remedies which may be available, with particular focus on the action for breach of confidence. Limitations of the breach of confidence action are considered, as well as the possibility that such an action could be utilised in respect of an internet intermediary. The possibility of a victim securing the removal (or ‘take-down’) of an intimate image from the internet by reference to an available ‘take-down’ scheme is also considered. Finally, potential law reforms in this area are noted.

The problem of non-consensual publication of intimate images received widespread attention in 2014 when a number of well-known celebrities (Jennifer Lawrence and Kate Upton among them), had intimate personal images published online following the hacking of their iCloud accounts.^[1] However, the problem is not peculiar to celebrities: a recent survey of 3,000 Australians found that one in ten Australian adults reported having a nude or semi-nude image of themselves sent to others or posted online without their permission.^[2] One concerning trend, among others, identified by the authors of that survey was that of ‘revenge porn’ – the term given to the non-consensual distribution of nude or sexual imagery of one person by a current or former intimate partner.^[3] A key feature of ‘revenge porn’ is the fact that the images themselves are often taken by or with the consent of the image subject, and shared consensually with the intimate partner, but later sent to others or published online without the image subject’s consent.

CRIMINAL LAWS

By and large, Australian criminal laws do not specifically regulate the non-consensual distribution of intimate images. Some states do, however, have specific offences applying to the distribution of images in certain situations.^[4]

In order to provide a more targeted response to ‘revenge porn’ and send a clear message to the community about the non-consensual distribution of private sexual images, a Bill to amend the Commonwealth Criminal Code so that it would apply to the publication of sexual and intimate images was introduced to federal parliament in October 2015.^[5] The Criminal Code Amendment (Private Sexual Material) Bill 2015 would amend the Criminal Code to make it an offence to use a carriage service to transmit and make available ‘private sexual material’. This offence is intended to cover a range of material – including that which depicts a person who is engaged in a sexual pose or sexual activity, or which depicts certain parts of the body – and in all cases where there is a reasonable expectation of privacy in relation to the material.^[6] The maximum penalty proposed for that offence is three years’ imprisonment. The Bill also seeks to create other offences, including the making of threats to upload or transmit private sexual material. At the time of writing, the fate of this Bill remains to be seen.

Although criminal laws may act as some deterrence for would-be perpetrators of ‘revenge porn’ or those who would otherwise distribute intimate images without consent, they might not provide satisfactory redress for the subject(s) of those images. For one thing, depending on the offence in question and the impact of the non-consensual distribution of the intimate image on the image subject, a victim may not be entitled to compensation. Moreover, the fact that certain behaviour constitutes a criminal offence does not necessarily empower the victim, particularly as the decision whether to prosecute is often not in the hands of the victim him or herself. Therefore, in order to gauge the extent to which Australian law protects and redresses breaches of personal privacy, it is necessary to consider the availability of civil remedies.

CIVIL REMEDIES

Various civil law remedies may be available to a victim of the non-consensual distribution of intimate images, with a focus on breach of confidence.

Defamation

In order to succeed in establishing defamation, it is likely that a person would have to show that the imputations conveyed by an image would be capable of causing them to lose standing, in some respect.^[7] It is unlikely that an ordinary, reasonable viewer in modern Australian society would think less of a person who had merely permitted themselves to be filmed by a partner naked or engaging in sexual activity, or who had shared such an image with a partner. After all, as Mitchell J noted in Wilson v Ferguson [2015] WASC 15 (discussed below) this is a ‘not uncommon contemporary practice’.^[8]

Therefore, unless the context in which the image is published or any text accompanying the image conveys defamatory imputations, or unless there is a suggestion that the image subject somehow permitted or encouraged an intimate image of themselves to be published to a wide audience, an action in defamation is unlikely to succeed.

Intentional infliction of harm

Presently, an action for intentional infliction of emotional distress, where that distress does not amount to a recognised psychiatric injury, is unlikely to succeed through the Australian courts.^[9] However, an action for intentional infliction of harm might be available to an individual who satisfies the elements of the tort: that the defendant acted in a way that was calculated or likely to cause physical harm, including nervous shock,^[10] to the plaintiff and that the plaintiff suffered actual injury.^[11]

Tort of harassment

Another possibility is the tort of harassment. However, there has been no superior court recognition of such a tort in Australia. In ABC v Lenah Game Meats Pty Ltd, however, Gummow & Hayne JJ referred to what may be a developing tort of harassment.^[12]

The Australian Law Reform Commission (ALRC) has recommended that if a statutory cause of action for serious invasion of privacy is not enacted, state and territory governments should enact uniform legislation creating a statutory tort of harassment.^[13]

Infringement of copyright

An action for infringement of copyright is possible against a person who has distributed an intimate image without consent of the image subject, where the image itself was captured by the image subject^[14] – in other words, where the image is a ‘selfie’. In many cases involving ‘sexting’, for example, this is the case. Clearly, though, this will not cover all instances where an intimate image has been distributed without the consent of the image subject.

Breach of confidence

A recent decision of the Western Australian Supreme Court, Wilson v Ferguson, found the defendant liable for a breach of confidence in respect of the non-consensual publication on his Facebook page of numerous photographs and two videos of the plaintiff.^[15] These images had been obtained during the course of the relationship between the plaintiff and defendant, and for the most part had been voluntarily shared by the plaintiff with the defendant.^[16]

The application of the elements of breach of confidence to these facts was straightforward. Mitchell J held that the ‘[t]he explicit nature of the images was itself suggestive of their confidential character..... The images were not in the public domain in any sense prior to the defendant's publication of them.’^[17] The obligation of confidence arose due to the implicit understanding between the parties that the images would not be shared with anyone else, as well as the fact that the plaintiff had sent communications to the defendant seeking to confirm this understanding.^[18] In any event, his Honour observed that the nature of the images and the circumstances in which they were obtained or provided was such as ‘to make it obvious to any reasonable person standing in the shoes of the defendant that the images were for his viewing only and were not to be shared with any other person’.^[19]

Mitchell J also found that there had been misuse of the images by the defendant in posting them to his Facebook page, an action which was (moreover) motivated by revenge, and that if it was necessary for the plaintiff to show detriment, she had clearly experienced significant distress and had been obliged to take time off work and seek counselling to deal with that distress.^[20]

As a result of the defendant’s breach of confidence, and in light of the ‘significant embarrassment, anxiety and distress’ she suffered as a result of the dissemination of intimate images among her workmates and social group, the plaintiff was awarded $35,000, with an additional $13,404 awarded for economic losses.^[21] The court also issued an injunction prohibiting further publication of explicit images of the plaintiff.

The real significance of this judgment lies in the court’s determination that the plaintiff was entitled to an injunction and to a monetary award to compensate her for embarrassment and distress. Only one previous superior court decision has determined that monetary compensation can be awarded to compensate a person for the distress and embarrassment occasioned by a breach of confidence, namely in the Victorian case of Giller v Procopets.^[22] Giller concerned the distribution and threatened distribution of videotapes, taken by the respondent, showing the respondent and appellant engaging in sexual activities.^[23] The Court of Appeal in Giller held that ‘damages’ could be awarded for distress pursuant to the court’s power to award damages for breach of an equitable primary right under s38 of the Supreme Court Act 1958 (Vic), as well as on the basis of its inherent jurisdiction to award equitable compensation.^[24] In Wilson, however, the award of monetary compensation was based solely on the court’s inherent equitable jurisdiction to award equitable compensation.^[25]

In holding that damages were available to compensate the plaintiff for her distress and embarrassment, Mitchell J considered himself bound to follow Giller unless he was of the view that it was ‘plainly wrong’.^[26] Not only did Mitchell J consider that Giller was not ‘plainly wrong’, but he was of the view that it represented a desirable development of the doctrine of confidence. ^[27] Among other things, this was in light of the fact that the exchange of intimate images between partners was ‘not uncommon’, and that broader dissemination of images online would ordinarily cause ‘damaging distress and embarrassment’.^[28]

In awarding an injunction to prohibit the defendant from further publication of explicit images of the plaintiff, Mitchell J expressed the view that the distribution of the images was not so widespread that an injunction would serve no utility.^[29]

Ultimately, the question of whether online publication of confidential information is so widespread that an injunction will be considered futile is a question of fact.^[30] However, there is a broader question as to whether injunctive relief should be available even where there has been extensive online publication of information in breach of confidence, such that the information has effectively entered into the public domain. This question did not arise in Wilson, but where it has arisen, it has been said that the legal principles are not settled.^[31] In Douglas v Hello! Ltd (No. 2), the Court of Appeal of England and Wales noted an ‘important potential distinction between the law relating to private information and that relating to other types of confidential information’.^[32] It held that in matters involving the publication of photographs, in particular, there may be ‘a fresh intrusion of privacy when each additional viewer sees the photograph and even when one who has seen a previous publication of the photograph is confronted by a fresh publication of it’.^[33]

Limitations of a breach of confidence action

Although breach of confidence could be a useful remedy for victims of the non-consensual distribution of intimate images, it has important limits. Bringing an action requires the would-be plaintiff to identity a defendant – usually the person who has first posted the images online. In a ‘revenge porn’ situation this is unlikely to be an issue, as that person will usually be a partner or former partner. However, in cases where images have been stolen by an anonymous hacker (such as occurred in the 2014 iCloud hacking scenario mentioned earlier), this may be more difficult.

Secondly, while a breach of confidence action may lie against a person initially responsible for posting the images, once an image is online it is difficult, if not impossible, to seek its permanent removal. Authors of the recent report on digital harassment and abuse in Australia found that victims of ‘revenge porn’ are ‘immensely aware that once distributed online, the erasure of those images cannot ever by guaranteed’.^[34] Indeed, it is the difficulty of securing removal of the images in question and the risk of ongoing distribution via the internet which makes the non-consensual online publication of such images so harmful for the subject(s).

Given the above, could a victim of the non-consensual distribution of images ever pursue an internet intermediary, such as Facebook? There have been no decided cases on this issue^[35] but, in order to succeed, at least two major hurdles would need to be overcome, even assuming that online publication does not put the material into the public domain. The first hurdle is the safe harbour provisions of Schedule 5 clause 91(1) of the Broadcasting Services Act 1992 (Cth). These provisions provide that a rule of common law or equity (among other things) has no effect to the extent to which it would subject an internet content host (such as Facebook) to liability in a case where the host was not aware of the nature of the content.^[36] Arguably, this hurdle could be overcome by putting an internet content host on notice that confidential intimate images are available online.^[37] The second, and probably more significant, hurdle is the need to establish that the intermediary is under an obligation of confidence to the would-be plaintiff. To succeed in this, an argument would need to be run that the obligation of confidence arises due to the nature of the material itself: the fact that a person obtains information which he knows or ought to know is ‘private’ being sufficient to impose an obligation of confidence upon a person who has control over the use or publication of the material (even where the information has not been improperly or surreptitiously obtained). Whether Australian courts would be prepared to go the way of their English counterparts in interpreting an obligation of confidence so widely ^[38] may be unlikely, given that Australia does not have the human rights framework in which the English action has developed to protect ‘private’ information.^[39]

TAKE-DOWN ACTIONS

There is limited capacity in Australia to apply for an image to be ‘taken down’ from the internet. An image subject may be able to seek the take-down of an intimate image posted without their consent by making a complaint under the Online Content Scheme established by Schedules 5 and 7 of the Broadcasting Services Act 1992 (Cth). An image may be taken down if it is ‘prohibited’ or ‘potentially prohibited’, and this status will be determined by reference to the National Classification Scheme. An image is unlikely to be considered prohibited or potentially prohibited unless it depicts a minor or certain kinds of sexual activity (for example, if it depicts sexual abuse).

In addition, where the image subject is a minor and the material would constitute ‘cyberbullying material targeted at an Australian child’, a complaint may be made to the Children’s eSafety Commissioner. The Commissioner has power to investigate complaints made against users as well as participating social media services. This scheme was established by the Enhancing Online Safety for Children Act 2015 (Cth).

OPTIONS FOR REFORM

In terms of civil remedies, the ALRC has recommended the introduction of a statutory tort for serious invasions of privacy, which would encompass the misuse of private information as well as intrusions upon seclusion.^[40] Such an action would almost certainly apply to the non-consensual distribution of intimate images. However, no legislation is currently on the table and it does not look like there is any movement on this issue. Although the ALRC has said that, in the absence of a statutory cause of action for invasion of privacy, the common law in this area will continue to develop through the Australian courts, recognition of a common law cause of action for invasion of privacy remains confined to two lower court decisions.^[41]

CONCLUSION

In the meantime, then, victims of the non-consensual distribution of images will need to look to the existing criminal law and any available civil remedies and take-down mechanisms. That status quo clearly represents a piecemeal and inadequate response to privacy harms inflicted by way of the non-consensual online distribution of intimate images.

Anna Bunn is a lecturer at Curtin Law School. She is currently finalising her PhD research, considering whether children should have more ‘control’ over their image in the online environment. PHONE [phone] EMAIL [e-mail].

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^[1] ‘Apple to Tighten Security after Celebrity Leaks’, Technology, BBC News (Online) 5 September 2014 <http://www.bbc.com/news/technology-29076899> . The BBC reports that Apple’s security itself was not breached but that iCloud accounts had been successfully hacked as a result of hackers guessing user passwords or as a result of phishing attacks.

^[2] Anastasia Powell and Nicola Henry, Digital Harassment and Abuse of Adult Australians: A Summary Report (RMIT University, 2015) 2.

^[3] Ibid, 3.

^[4] For example, New South Wales Crimes Act 1900, s578C (offence to publish ‘indecent’ articles: this offence was used to successfully prosecute a person who, in 2011, had posted six nude photographs of his former partner on his Facebook page: Police v Ravshan Usmanov [2011] NSWLR 40). See also Summary Offences Act 1953 (SA), s26C (offence to distribute an invasive image); Police Offences Act 1935 (Tas), s13B (offence to distribute or publish a ‘prohibited visual recording); Summary Offences Act 1966 (Vic) s41DA(1) (offence to distribute an intimate image where distribution contrary to community standards of acceptable conduct).

^[5] Commonwealth, Parliamentary Debates, House of Representatives, 12 October 2015 (Tim Watts) 5-8.

^[6] Criminal Code Amendment (Private Sexual Material) Bill 2015 (Cth) cl 2.

^[7] See Radio 2UE Sydney Pty Ltd v Chesterton [2008] NSWCA 66 (17 April 2008), [89] (McColl JA); and Jill Cottrell, ‘What does “Defamatory” mean? Reflections on Burkoff v Burchill’ (1998) Tort Law Review 149, 157.

^[8] Wilson v Ferguson [2015] WASC 15, [81].

^[9] Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; (2007) 71 NSWLR 471, [73]; Giller v Procopets [2008] VSCA 236; (2008) 24 VR 1, [164] (Ashley JA); although Maxwell P, with limited support from Neave JA, was of the view that there was no bar to the common law development of an action for intentional infliction of emotional distress, where that distress fell short of a recognised psychiatric injury: Giller v Procopets [2008] VSCA 236; (2008) 24 VR 1, 6 [7] (Maxwell P), 112 [471] (Neave JA).

^[10] Mendelson notes that ‘the term nervous shock is a legal term of art denoting damage in the form of psychiatric illness that is not consequent on physical injury or physical contact’. Danuta Mendelson, The New Law of Torts (Oxford University Press, 2^nd Edition, 2010) 130-1.

^[11] Bunyan v Jordan [1937] HCA 5; (1937) 57 CLR 1; Northern Territory v Mengel (1995) 185 CLR 307, 347; Carrier v Bonham [2001] QCA 234. See also JMD v GJH [2012] WADC 124 (12 October 2012).

^[12] ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 255 [123].

^[13] Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era, Report No. 123 (2014) 14 [Recommendation 15-1].

^[14] Copyright Act 1968 (Cth), s36(1) and see s35 as to ownership.

^[15] Wilson v Ferguson [2015] WASC 15 (Wilson).

^[16] Ibid [22], although the defendant had gained access to some videos without the plaintiff’s consent (at [23]).

^[17] Ibid [56] (Mitchell J).

^[18] Ibid.

^[19] Ibid [57]-[58].

^[20] Ibid [59] (Mitchell J).

^[21] Ibid [85] (Mitchell J).

^[22] See, also, Doe v ABC [2007] VCC 281.

^[23] Giller v Procopets [2004] VSC 113 [1] (Gillard J).

^[24] Giller v Procopets [2008] VSCA 236; (2008) 24 VR 1 (Giller) [431] (Neave JA) (Maxwell P concurring).

^[25] Wilson, see note 15 above [67] (Miller J).

^[26] Ibid [75] referring to the High Court decision in Farah Constructions Limited v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 [135].

^[27] Ibid [76].

^[28] Ibid [81] (Mitchell J).

^[29] Ibid [61].

^[30] Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408, 461-2; Australian Football League v The Age Company Ltd [2006] VSC 308; (2006) 15 VR 419, 428 [38] (Kellam J).

^[31] Earl v Nationwide News Pty Ltd [2013] NSWSC 839, [26] (White J); see also Doe v Yahoo!7 Pty Ltd [2013] QDC 181 (9 August 2013) [193] (Smith DCJ).

^[32] Douglas v Hello! Ltd (No. 2) [2005] EWCA Civ 595; [2005] 4 All ER 128, 155 [105].

^[33] Ibid.

^[34] Powell and Henry, see note 2 above, 3.

^[35] Although the issue did arise in Doe v Yahoo!7 Pty Ltd [2013] QDC 181 (9 August 2013), where Smith DCJ refused to strikeout the plaintiff’s claim for breach of confidence.

^[36] Defined broadly as ‘a person who hosts internet content in Australia, or who proposes to host internet content in Australia’, where ‘internet content’ is defined as ‘information that is kept on a data storage device; and is accessed, or available for access, using an internet carriage service’ but does not include email or ‘information that is transmitted in the form of a broadcasting service’: Broadcasting Services Act 1992 (Cth), Sch 5 cl 3.

^[37] The section will also not apply where a content host actively encourages the distribution of this type of material. For a discussion as to what is meant by the term ‘aware’ in this context, see Peter Leonard, ‘Storms Batter Not-so-safe Harbours – Liability of Internet Intermediaries in Australia’ (2012) 88 Intellectual Property Forum: Journal of the Intellectual and Industrial Property Society of Australia and New Zealand 41.

^[38] See, for example, Campbell v MGN Ltd [2004] 2 All ER 1002 [14] (Lord Nicholls).

^[39] New South Wales Law Reform Commission, Invasion of Privacy, Consultation Paper No. 1 (2007) 54[2.78]-[2.79].

^[40] Ibid 55-56 [2.83]; Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era, Report No. 123 (2014) 9 [Recommendation 5-1].

^[41] Grosse v Purvis (2003) Aus Torts Reports 81-7; Doe v ABC [2007] VCC 281.

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