Revenge Porn and Sexting Moments of Indiscretion – a Lifetime of Regret?

Revenge Porn and Sexting:

Moments of indiscretion – a lifetime of regret?

By Kenneth Yin Retired Barrister, Francis Burt Chambers, now lecturer in law at the School of Business and Law, Edith Cowan University.

Revenge porn and the internet

The internet makes revenge porn easy. ABC News stated in 2019 that 1,400 cases of ‘revenge porn abuse’ were reported across Australia1 and The Conversation that a survey revealed that ‘1 in 5 Australians is a victim of “revenge porn”, despite new laws to prevent it’.2 A letter beginning: ‘Hey Bestie: How can I stop my ex from using my sexts against me?’ published in a Perth Now agony column on 28 January 20223 speaks eloquently of the torment caused by having sexts disclosed.

Legal consequences for perpetrating revenge porn

Wiki defines ‘revenge porn’ as: ‘…the distribution of sexually explicit images or videos of individuals without their consent. The material may have been made by a partner in an intimate relationship with the knowledge and consent of the subject at the time, or it may have been made without their knowledge.’4 Arguably, the most prevalent form of revenge porn is ‘sexting’, which Wiki defines as ‘…sending, receiving, or forwarding sexually explicit messages, photographs, or videos, primarily between mobile phones, of oneself to others. It may also include the use of a computer or any digital device.’5

The word ‘revenge porn’ is clearly a relatively recent creation since the references in Wiki to ‘images’ and ‘videos’ are to dissemination via relatively recent technology; even more recent is sexting, as the use of mobile phones and computers or any digital device to send and receive messages and photographs only became possible when mobile phones and computers began to have that capability.

The question itself of whether victims have redress against those who distribute private communications and images however is not novel. The celebrated case of the Duke and Duchess of Argyll6 is arguably the progenitor of revenge porn. The two were married in 1951 and a decree of dissolution of their marriage was made in 1963 following divorce proceedings described as ‘incredibly toxic’.7 During the trial, the Duke produced ‘a Polaroid picture of the Duchess wearing nothing but a string of pearls, with a mystery man in her Mayfair flat’.8 Subsequently, the Duchess, fearing the Duke would disclose ‘secrets .. relating to her private life, personal affairs or private conduct communicated to the Duke in confidence during the subsistence of their marriage’,9 sought an interlocutory injunction to restrain him from doing so.

When granting the Duchess an interlocutory injunction, the Court noted that ‘with the object of preserving the marital relationship, it was the policy of the law that communications between husband and wife should be protected against breaches of confidence’.10

It is now settled law that a breach of confidence could give rise to injunctive relief.11

The next phase in the evolution of revenge porn law was Giller v Procopets. 12 Whilst it was accepted that a breach of confidence could give rise to injunctive relief and that a private image could constitute confidential information,13 the unresolved question was whether that cause of action could give rise to a right to compensation. Giller resolved conclusively that an ex-partner can seek compensation for pain and suffering caused by revenge porn.

Giller was a classic revenge porn case. The defendant videotaped sexual activity between the plaintiff and him and after the relationship ended showed them to third parties without the plaintiff’s consent. The plaintiff recovered compensation for emotional distress caused by the exposure of private information on the grounds that the disclosure of the tapes without her consent amounted to a breach of confidence.

In Western Australia, it was confirmed in Wilson v Ferguson14 that a plaintiff had a right to damages for breach of confidence arising from the dissemination of revenge porn, in this case sexting.

The parties in that case were FIFO workers who, during a romantic relationship, sent intimate images to each other via their mobiles. The defendant also without the plaintiff’s consent sent himself videos of her from her phone. After the relationship ended, the defendant posted some of those images and videos on his Facebook page. Many of the defendant’s Facebook friends were co-workers of both the plaintiff and defendant who could download them.

This had a severe effect on the defendant; it affected her sleep, and she undertook counselling for anxiety and distress. She recovered damages for the humiliation, anxiety and distress caused by the

defendant’s breaches of the obligation of confidence owed to her.

Under the principles outlined in Wilson, the following requirements must be satisfied to recover compensation for what essentially is revenge porn:

First, the information must be ‘confidential’:15 in the usual revenge porn scenario, this should usually not be difficult to establish since intimate texts or images would likely have the required quality of ‘confidentiality’. Second, the information must be received in circumstances importing an obligation of confidence and must involve an unauthorised use of the information: potential question marks might arise if say the plaintiff suggested they had ‘no problem’ with other parties seeing those images or by their conduct have suggested as such, for example by sharing the images to the same audience.16

Last, the plaintiff must establish that they were injured by the publication:17 underlining the potentially troublesome nature of this enquiry, a significant part of Wilson was taken up analysing the psychological evidence to establish the plaintiff’s distress.18

The final significant development in the Western Australian evolution of revenge porn law is the recent enactment of the 2019 Criminal Law Amendment (Intimate Images) Act (‘the Act’) which amends the Criminal Code Act Compilation Act 1913 (WA) s 5 (‘the Criminal Code’).

That Act makes it an offence to distribute an intimate image without the consent of the person in the image.19 An ‘intimate image’ can include an image of the person in a state of undress, using the toilet or showering or engaged in a sexual act.20

The Act provides for a ‘summary’ conviction carrying a fine of $18,000 and imprisonment for 18 months; or imprisonment for 3 years.21 The latter, more serious, type of case is dealt with by the District Court rather than ‘summarily’, by a magistrate. The Court can also make orders for the defendant to remove or destroy the image.22

Judicial guidance as to the scope of the Act has been somewhat limited till now; so far as is known, two of the accused who were charged under the Act pleaded guilty, and the third pleaded not guilty and was acquitted before a Magistrate.

The first defendant charged under the Act distributed intimate images of his exgirlfriend by posting them on Instagram without her consent and in July 2019 was penalised with a 12-month intensive supervision order, avoiding jail.23 He reportedly posted the images as a form of retribution after the relationship broke down and was suicidal. The magistrate considered that this was not at the worst end of the scale and that the act was done impulsively.24

More egregious was the conduct of a man who following the breakdown of a relationship sent intimate photographs of his ex-girlfriend to a pornographic website and ‘bombarded’ her with abusive and threatening messages. The judge described his conduct as ‘planned and vicious’ and in August 2020 sentenced him to twenty months’ jail under the Act.25

The third person to be charged under the Act was a policewoman who showed images of a partially-naked woman to three colleagues.26 She pleaded not guilty and was acquitted, with Magistrate Elizabeth Langdon noting that ‘the circumstances of this case are very different to those envisaged by the Attorney-General’ and that the disclosure was both relevant and inextricably linked to her work as a police officer.27 Although the media reports do not specifically mention it, it is likely that Magistrate Langdon was there alluding to s221BD(4) of the Criminal Code28 which provides:

Nothing in subsection (2) makes it an offence…for a member or officer of a law enforcement agency or their agents to distribute an intimate image when acting in the course of their official duties.

The avenue to a just outcome

There is no one-size-fits-all legal remedy for a victim of revenge porn.

One might, like the Duchess of Argyll, seek an interlocutory injunction to restrain a breach of confidence but this is expensive and itself confers no right to compensation. Besides, if the offending publication has already been distributed, the injunction might be too late as the horses would have bolted.

A victim could also institute proceedings for compensation. The plaintiff might recover significant damages or thereby achieve a favourable settlement, but, conversely, if confronted with a difficult defendant, might face lengthy and expensive proceedings. The difficulties in establishing proof of psychological damage in Wilson were earlier noted.29

On the other hand, making a complaint of criminal behaviour under the Act costs little. But victims who suffered already will enjoy little comfort if a defendant ultimately is handed a relatively light penalty such as an intensive supervision order.30 Also, the police might not lay charges if they think the evidence does not support the charge or that there is a good defence.

For victims of revenge porn, the admonishment to ‘be more vigilant next time’ is glib and unpropitious. It is more useful to provide them assurance they do have remedies, and to advise them to seek legal advice promptly to explore which combination of actions is most appropriate for them.

End Notes

1 ‘1,400 cases of ‘revenge porn’ abuse reported across Australia’: ABC News, https://www.abc.net.au/ news/2019-09-11/revenge-porn-report/11499522 2 https://theconversation.com/1-in-5-australians-is-avictim-of-revenge-porn-despite-new-laws-to-preventit-117838 3 https://www.perthnow.com.au/lifestyle/hey-bestie/ hey-bestie-how-can-i-stop-my-ex-from-using-my-sextsagainst-me--c-5469233 4 https://en.wikipedia.org/wiki/Revenge_porn 5 https://en.wikipedia.org/wiki/Sexting 6 Duchess of Argyll v Duke of Argyll (1967) 1 Ch 302 (‘Duchess of Argyll v Duke of Argyll’). 7 ‘Margaret Duchess of Argyll’s real life vs A Very British

Scandal’: The Cosmopolitan, https://www.cosmopolitan. com/uk/reports/a38566318/margaret-duchess-argyllphotos/ 8 As luridly reported in The Sun: ‘”BRAZEN NYMPHO”

Duchess of Argyll was first-ever victim of revenge porn, says A Very British Scandal star Claire Foy’: https:// www.thesun.co.uk/tv/16925323/dirty-duchess-firstrevenge-porn-victim-claire-foy/ 9 Duchess of Argyll v Duke of Argyll (n 6). 10 Ibid 304. 11 Australian Broadcasting v Lenah Game Meats (208) CLR 199 (‘Australian Broadcasting v Lenah Game Meats’).

Giller v Procopets (2008) VSC 113 (‘Giller v Procopets’). 12 Giller v Procopets (n 11). 13 Ibid [395]. 14 Wilson v Ferguson (2015) WASC 15 (‘Wilson v Ferguson’). 15 Ibid [11]-[12]. 16 Ibid. 17 Ibid. 18 Ibid [98]-[103]. 19 S 3 of the Act which inserted S 221BD(2) of the Criminal

Code. 20 S221BA of the Criminal Code, inserted by s4 of the Act. 21 S221BD(2) of the Criminal Code, inserted by s4 of the

Act. 22 S221BE(2) of the Criminal Code, inserted by s4 of the

Act. 23 ‘First person convicted under new WA ‘revenge porn’ laws avoids jail sentence’ ABC News https://www.abc. net.au/news/2019-07-22/mitchell-brindley-first-personin-wa-sentenced-for-revenge-porn/11331022 24 Ibid. 25 As reported in ‘Married father of two jailed for revenge porn offence against lover’: ABC News https://www.abc. net.au/news/2020-08-28/married-man-armandeepsingh-jailed-for-revenge-porn/12607492 26 https://www.abc.net.au/news/2020-02-19/wa-policetrial-semi-naked-photo-woman-broome-christinefrey/11976076 27 Ibid. 28 Inserted under s4 of the Act. 29 See n18 above. 30 See n 23 above.