Clough, Jonathan --- "Revenge porn: criminal law responses" [2016] PrecedentAULA 8; (2016) 132 Precedent 30

REVENGE PORN: CRIMINAL LAW RESPONSES

By Jonathan Clough

Digital technology has had a profound impact on many aspects of our lives, none more so than on our ability to connect with each other. The social networking site ‘Facebook’ alone has approximately 1.49 billion monthly active users,^[1] while in Australia there are almost as many mobile phone handsets as people.^[2] Central to this increased connectivity has been the convergence of telecommunications and computing, allowing us to communicate with each other at any time and anywhere.

The incorporation of audio and video recording capabilities means that we can now take and share images instantaneously. For some, this may include images of themselves and/or of their partners in intimate moments. According to one US survey, 54 per cent of respondents used mobile devices to send or receive intimate content including video, photos, emails and messages.^[3] While such conduct predates digital technology, modern communication devices have greatly facilitated the capturing and sharing of such ‘intimate images’, providing easy access to high definition cameras, avoiding the need for external processing, allowing for discreet storage of images, as well as the ability to share those images freely and instantly.

Over recent years it has become apparent how easily such images, taken and shared consensually, may subsequently be uploaded to the internet or otherwise disseminated without consent. First coming to prominence with celebrity ‘sex tapes’, there are now numerous cases where non-celebrities find that ex-partners, acquaintances, even strangers, have distributed intimate images as a form of harassment or humiliation; so-called ‘revenge porn’. This may be via email or MMS, social networking sites,^[4] or websites specifically aimed at such images such as ‘isanyoneup.com’^[5] or ‘UGotPosted.com’.^[6]

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THE NATURE OF THE HARM

The non-consensual distribution of intimate images may cause severe emotional distress and psychological harm. The presence of the images may become known to the victim’s friends, family and/or work colleagues, while a search of the person’s name may take the user to the images,^[7] potentially impacting on their employment prospects.^[8] The images may be distributed to a wider audience via websites specifically soliciting such images; converting a private moment into ‘non-consensual pornography’.^[9] These harms may be compounded by the persistence of material on the internet; once distributed, such images are effectively irretrievable.

Such conduct may also be seen as a gross invasion of privacy; in particular, our ability to determine when and with whom we will share private moments.^[10] Notwithstanding the person’s initial consent to the recording and/or sharing of the image, such consent is typically context-specific and does not extend to more widespread distribution. The recording of private moments, without consent or authorisation, is already criminalised under surveillance and voyeurism provisions.^[11] The distinction in these cases is that the initial private moment is extended into perpetuity. It is clearly arguable that the distribution of such images, without consent, is as gross an invasion of privacy as if the initial conduct had been recorded without permission.

Thirdly, although not exclusively directed at women, such conduct is commonly associated with domestic violence,^[12] and appears to disproportionately involve female victims. In this sense, revenge porn may be seen as part of a broader spectrum of conduct that involves the use of information and communications technologies (ICTs) as an instrument of sexual violence.^[13]

EXISTING REMEDIES

There are relatively few laws dealing specifically with this phenomenon. Although a statutory action for privacy has been recommended,^[14] there is currently no tort of privacy recognised in Australia,^[15] although an action in equity for breach of confidence may be successful in such cases.^[16] In any event, civil remedies are typically inadequate for a number of reasons. First, many victims do not have the financial means and/or technical expertise to litigate such conduct. Secondly, protracted litigation is likely to further exacerbate the sense of humiliation associated with the unauthorised distribution. Finally, even if successful, civil actions do not carry the public condemnation and sanctions which are arguably warranted in such cases.

It may also be argued that a public enforcement response is appropriate because, although the harm is most acutely experienced by the individual affected, a gross invasion of privacy may impact on us all. ‘In an important sense, one person’s loss [of privacy] is every person’s loss since it tears away at the terms of peaceful co-existence in society.’^[17] The absence of an effective response to unauthorised distribution may have a ‘chilling’ effect on private behaviour. That is, people may feel less willing to engage in perfectly lawful private conduct knowing that there may be no ramifications if that privacy is seriously breached.

A range of criminal offences can and have been applied in this context. Particularly serious cases may fall within existing stalking or harassment offences. For example, in the United States, Jovica Petrovic was convicted of stalking, having taken intimate images and other personal material related to his ex-wife and posting them on a website which he created. He then mailed homemade postcards to people associated with his ex-wife, including family members and work colleagues, directing them to the website.^[18]

However, such offences might not apply where, for example, there is a need to prove a ‘course of conduct’^[19] and the initial distributor posts material on only one occasion. Where the distributor is unknown to the victim, it might also be difficult to prove the necessary mental state, particularly where it requires an intention to cause harm. Surveillance and/or voyeurism offences may be inapplicable, due to the consent to the initial recording.

Where the images involve depictions of minors, then those distributing or in possession, including the person depicted, may be prosecuted for child pornography offences.^[20] In other cases, classification or indecency offences have been successfully applied. For example, Ravhan Usmanov was convicted of ‘publishing an indecent article’ under s578C of the Crimes Act 1900 (NSW) when he published indecent photographs of his girlfriend on his Facebook page following their break-up.^[21]

Such conduct may involve debates as to whether the particular image is ‘indecent’, with similar issues arising in relation to the federal offence of using a carriage service to menace, harass or cause offence.^[22] That is, consideration would have to be given to the circumstances of the distribution, in addition to the image itself, in determining whether the conduct was offensive to a reasonable person.^[23]

In many cases, access to the images themselves may be unauthorised. For example, in the United States, ‘Hunter Moore’, who allegedly administered the ‘revenge porn’ site ‘isanyoneup.com’, was indicted for hacking offences and identity theft.^[24] As some website operators charge money for images to be taken down, it may also be possible to prosecute for extortion.^[25]

SPECIFIC OFFENCES

A number of jurisdictions have now enacted offences which criminalise the distribution of intimate images without consent. South Australia^[26] and Victoria^[27] have recently enacted such offences, while the issue is currently being considered in New South Wales.^[28] Other common law countries to have done so include Canada,^[29] New Zealand, ^[30] and the UK.^[31] In each jurisdiction the maximum penalty is two years’ imprisonment,^[32] other than in Canada where it is five years.^[33]

Rather than review each offence in detail, this article draws upon these provisions to summarise the key features of such offences. These include:

1. the images to which the offence applies;

2. the role of consent;

3. the nature of the distribution;

4. the nature of the harm caused;

5. the intention required; and

6. defences.

‘Intimate images’

Although varying between jurisdictions, the images covered typically include moving or still images that depict nudity, intimate activities such as undressing or showering, and/or sexual activity. For example, the Victorian provision defines an ‘intimate image’ as a moving or still image of a person engaged in sexual activity, in a manner or context that is sexual, or of the genital or anal region or female breasts.^[34]

In some jurisdictions, there is the additional requirement that the image was captured in circumstances giving rise to a reasonable expectation of privacy. For example, the Canadian provision, in addition to referring to nudity or sexual activity, requires that the image be taken in circumstances that gave rise to a reasonable expectation of privacy, and where the person retained a reasonable expectation of privacy at the time of the offence.^[35] In the UK, the image must be both ‘private’ and ‘sexual’.^[36]

In all jurisdictions, the definitions are broad enough to encompass a range of media. In addition, the UK provision includes images which have been altered in any way,^[37] while in New Zealand the offence extends to recordings ‘made and transmitted in real time without retention or storage in...a physical form [or] an electronic form from which the recording is capable of being reproduced with or without the aid of any device or thing’.^[38] This would, for example, extend to services such as Skype and other streaming devices which may be used to distribute the images as they occur.^[39]

Consent

One of the particular challenges of addressing this form of conduct is that the initial image was generally recorded by, or provided to, another person consensually; it is the subsequent distribution which is unauthorised. Consequently, in most jurisdictions it is an element of the offence that the person depicted did not consent to the distribution.^[40] In the UK, it is also a defence if the person reasonably believed the image had previously been disclosed for ‘reward’, and had no reason to believe this was without consent.^[41]

In Victoria, the distribution must be ‘contrary to community standards of acceptable conduct’.^[42] Relevant factors include the nature and content of the image, the circumstances in which it was captured/distributed, the personal characteristics of the person depicted, and ‘the degree to which the distribution of the image affects the privacy of a person depicted in the image’.^[43] Further, it is a defence if the person depicted was not a minor and ‘had expressly or impliedly consented, or could reasonably be considered to have expressly or impliedly consented’ to both the distribution of the intimate image and the manner in which it was distributed.^[44]

In New Zealand, it is irrelevant whether the intimate visual recording was made with or without the knowledge or consent of the victim,^[45] and there is no requirement to prove that the distribution was without consent. There is, however, a requirement of intent to cause harm (see below).

Distribution

In all jurisdictions, ’distribution’ is defined very broadly to include various forms of distribution. For example, ‘distribute’ under the South Australian provision includes ‘communicate, exhibit, supply, upload or transmit; and ... make available for access by another’.^[46] Importantly, distribution may be by any person, not just the person who was involved in the making of the initial image.

Although digital technology has undoubtedly facilitated this conduct, the distress and humiliation which may be caused by the distribution of intimate images is not confined to the online environment. Indeed digital technology may equally facilitate the distribution of images in hard-copy, which may fall outside provisions targeting online distribution. Such anomalies may be said to offend the principle of ‘online/offline consistency’; that is, so far as possible, conduct which is criminal offline should be criminal online, and vice versa.^[47]

Only in New Zealand is the offence limited to online distribution, the relevant conduct being to ‘post’ a ‘digital communication’.^[48] ‘Digital communication’ is defined as ‘any form of electronic communication’, including ‘any text message, writing, photograph, picture, recording, or other matter that is communicated electronically’.^[49]

Should Australia move to a federal offence, this issue would likely cause difficulties due to limits on federal power. As with other cybercrime offences, the Commonwealth would most likely rely on the telecommunications power under s51(v) of the Constitution. This would therefore limit the offence to conduct committed using a ‘carriage service’ or the like.^[50]

The nature of the harm caused

In most jurisdictions, there is no need to prove that harm was caused as a result of the distribution.^[51] In New Zealand, however, it is an element of the offence that harm be caused,^[52] where ‘harm’ is defined to mean ‘serious emotional distress’.^[53] In order to offset the inherent subjectivity in ‘serious emotional distress’, it must also be demonstrated that posting the communication ‘would cause harm to an ordinary reasonable person in the position of the victim’.^[54] In determining this issue, a number of factors are relevant, including the age and characteristics of the victim, whether the communication was anonymous or repeated, how widely it was circulated, and the context in which it appeared.^[55]

Intention to cause harm

In some jurisdictions it is not necessary to show that the accused intended to cause harm. This is particularly significant where distribution of the image may be by a person unknown to the victim. For example, in Canada the act of distribution must be carried out knowingly, with knowledge that the person did not consent to the distribution, or recklessly as to non-consent, but there is no need to prove an intention to cause harm.^[56] In contrast, both New Zealand and the UK require the accused to have acted with an intention to cause harm/distress.^[57] However, in the UK a person is not to be taken to have intended to cause distress merely because that was a natural and probable consequence of the disclosure.^[58]

Defences

The potential breadth of such offences, and in particular their potential to restrict freedom of speech, makes it important to consider possible defences. This is particularly important for jurisdictions which do not require proof of an intention to cause harm, and/or which recognise lesser mental states such as recklessness. For example, in Canada the offence is subject to a defence where the conduct ‘serves the public good and does not extend beyond what serves the public good’.^[59] ‘Public good’ has been interpreted in other contexts as ‘necessary or advantageous to religion or morality, to the administration of justice, the pursuit of science, literature, or art, or other objects of general interest’.^[60] Similarly, some jurisdictions recognise defences where the conduct is necessary for legal,^[61] journalistic,^[62] or medical or scientific purposes.^[63]

CONCLUSION

The sharing of images, including intimate images, is a common occurrence in the lives of many people. As with other areas of social regulation, the criminal law should play only a limited role, with other responses including education as to the risks of sharing intimate images and the means of protecting online security; the role of industry in taking down images from social networking sites or online searches; and the possibility of a statutory tort of invasion of privacy. Nonetheless, as in the offline world, it is important that the criminal law condemns gross invasions of privacy, and provides an effective public enforcement response. As this article has illustrated, there are now numerous models for offences targeting the unauthorised distribution of intimate images, providing jurisdictions with the ability to respond to this unwarranted and harmful conduct.

Jonathan Clough is a Professor in the Faculty of Law, Monash University. EMAIL [e-mail].

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^[1] Facebook, ‘Facebook Reports Second Quarter 2015 Results’, Press Release (29 July 2015).

^[2] 20.57 million, as at June 2014; Australian Communications and Media Authority, Communications Report 2013-14, (ACMA, 2014).

^[3] McAfee, ‘Study Reveals Majority of Adults Share Intimate Details via Unsecured Digital Devices’, Press Release, 4 February 2014.

^[4] Usmanov v R [2012] NSWDC 290.

^[5] N Karlinsky and L Effron, ‘Revenge porn mogul indicted on federal conspiracy charges’, ABC News (23 January 2014).

^[6] D Citron and M Franks, ‘Criminalizing revenge porn’ (2014) 49 Wake Forest Law Review 345, 369.

^[7] Wilson v R [2012] VSCA 40.

^[8] Citron and Franks, above note 6, 352.

^[9] L E Rothenberg, ‘Re-thinking privacy: Peeping Toms, video voyeurs, and failure of the criminal law to recognize a reasonable expectation of privacy in the public space’ (2000) 49 American University Law Review 1127, 1145.

^[10] ABC v Lenah Game Meats [2001] HCA 63, [321]-[322] per Callinan J, citing J Rosen, The Unwanted Gaze: The Destruction of Privacy in America (Random House, 2000).

^[11] See, for example, s7 Surveillance Devices Act 1999 (Vic); ss227A and 227B Criminal Code 1899 (Qld).

^[12] Citron and Franks, above note 6, 352.

^[13] A Powell, ‘Configuring consent: Emerging technologies, unauthorized sexual images and sexual assault’ (2010) 43(1) Australian & New Zealand Journal of Criminology 76, 80-1, 84.

^[14] Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice (ALRC Report No. 108, 2008), Recommendation 74.

^[15] ABC v Lenah Game Meats [2001] HCA 63; Victoria Park Racing and Recreation Grounds Co Ltd v Taylor [1937] HCA 45; (1937) 58 CLR 479. Although see Grosse v Purvis [2003] QDC 151 and Doe v Australian Broadcasting Corporation [2007] VCC 281.

^[16] Giller v Procopets [2008] VSCA 236; Wilson v Ferguson [2015] WASC 15.

^[17] Law Reform Commission Ireland, Report on Privacy: Surveillance and the Interception of Communications, No. 57 (1998), p3.

^[18] US v Petrovic, 701 F 3d 849 (8^th Cir. 2012).

^[19] See, for example, s21A Crimes Act 1958 (Vic).

^[20] Law Reform Committee, Parliament of Victoria, Inquiry into Sexting, Report (May 2013), ch 4.

^[21] Usmanov v R [2012] NSWDC 290.

^[22] Section 474.17 Criminal Code Act 1995 (Cth).

^[23] R v McDonald and DeBlaquiere [2013] ACTSC 122 at [113].

^[24] Karlinsky and Effron, see note 5 above.

^[25] Citron and Franks, above note 6, 369. Also see US v Coss, 677 F 3d 278 (6^th Cir. 2012).

^[26] Section 26C Summary Offences Act 1953 (SA).

^[27] Section 41DA Summary Offences Act 1966 (Vic). It is also an offence to threaten to distribute an intimate image: s41DB.

^[28] T Gotsis, Revenge pornography, privacy and the law, NSW Parliamentary Research Service, e-brief, August 2015. Similar offences have also been enacted/proposed in a number of US states; Citron and Franks, above note 6, 371.

^[29] Section 162.1 Criminal Code (RSC, 1985, c C-46).

^[30] Section 22 Harmful Digital Communications Act 2015 (NZ).

^[31] Section 33 Criminal Justice and Courts Act 2015 (UK). (This offence applies only to England and Wales.)

^[32] Section 26C(1) Summary Offences Act 1953 (SA); s. 22(3) Harmful Digital Communications Act 2015 (NZ); s33(9) Criminal Justice and Courts Act 2015 (UK); s41DA Summary Offences Act 1966 (Vic).

^[33] Section 162.1(1) Criminal Code (Can).

^[34] Section 40 Summary Offences Act 1966 (Vic). See also ‘invasive image’ under s26A Summary Offences Act 1953 (SA).

^[35] Section 162.1(2) Criminal Code (Can). Also see the definition of ‘intimate visual recording’ in s4 Harmful Digital Communications Act 2015 (NZ).

^[36] Sections 33 and 35 Criminal Justice and Courts Act 2015 (UK). In South Australia, the offence does not apply to an image of a person in a ‘public place’; s26A.

^[37] Section 34(5) Criminal Justice and Courts Act 2015 (UK).

^[38] Section 4 Harmful Digital Communications Act 2015 (NZ).

^[39] See, for example, R v McDonald and DeBlaquiere [2013] ACTSC 122.

^[40] Section 162.1 Criminal Code (Can); s4 Harmful Digital Communications Act 2015 (NZ); s26C(1) Summary Offences Act 1953 (SA); s33(1) Criminal Justice and Courts Act 2015 (UK).

^[41] Section 33(5) Criminal Justice and Courts Act 2015 (UK).

^[42] Section 41DA(1)(b) and s40 Summary Offences Act 1966 (Vic).

^[43] Section 40.

^[44] Section 41DA(3).

^[45] Section 4(3) Harmful Digital Communications Act 2015 (NZ).

^[46] Section 26A Summary Offences Act 1953 (SA). Also see s162.1(1) Criminal Code (Can); s34 Criminal Justice and Courts Act 2015 (UK); s41DA Summary Offences Act 1966 (Vic).

^[47] J Clough, Principles of Cybercrime, 2^nd edn, Cambridge University Press, 2015, p17.

^[48] Section 22(1) Harmful Digital Communications Act 2015 (NZ).

^[49] Ibid, s4.

^[50] See, for example, s474.17 Criminal Code Act 1995 (Cth).

^[51] Section 162.1 Criminal Code (Can); s26C Summary Offences Act 1953 (SA); s33 Criminal Justice and Courts Act 2015 (UK); s41DA Summary Offences Act 1966 (Vic).

^[52] Section 22 Harmful Digital Communications Act 2015 (NZ).

^[53] Ibid, s4.

^[54] Ibid, s22(1).

^[55] Ibid, s22(2).

^[56] Section 162.1 Criminal Code (Can). Also see s26C Summary Offences Act 1953 (SA); s41DA Summary Offences Act 1966 (Vic).

^[57] Section 22 Harmful Digital Communications Act 2015 (NZ); s33(1)(b) Criminal Justice and Courts Act 2015 (UK).

^[58] Section 33(8) Criminal Justice and Courts Act 2015 (UK).

^[59] Section 162.1(3) Criminal Code (Canada).

^[60] R v Sharpe [2001] 1 SCR 45 at [90] per McLachlin CJ.

^[61] Section 26C(2) Summary Offences Act 1953 (SA); s33(3) Criminal Justice and Courts Act 2015 (UK).

^[62] Section 33(4) Criminal Justice and Courts Act 2015 (UK).

^[63] Section 26C(2) Summary Offences Act 1953 (SA).