The sharing or threatened sharing online of intimate photos by ex-partners or spouses has become an increasing problem in NSW. There are no statistics on the incidence of sharing because these things are very difficult to track, but anecdotally those who work in the areas of family law and domestic violence have reported it as a problem and are calling for a response.
Victoria and South Australia already have laws making the sharing of intimate photos without consent, or threatening to share images without consent a crime punishable by a fine and potential jail sentence of two years. The Northern Territory and Western Australia are still in the consultation or reporting stage but intend to bring in legislation.
In March 2016 a report was published by the Standing Committee on Law and Justice entitled Remedies for Serious Invasion of Privacy in New South Wales, and in September 2016 the Government published their response to this report. This is lawyer speak for the government is working through the process of considering what legislation, if any, it should have in relation to this issue.
The Government response can be found here if you are interested in reading it.
The Department of Justice NSW has also released a response and you can find that here if you are interested in reading it.
It was suggested that there should be a tort created to protect a person's privacy, that is a civil action. The NSW Government has indicated in their report that they believe that a criminal deterrent is what is needed. It was considered however that the original inquiries terms did not allow it to consider criminal offences, and so the NSW Government is now starting the process of consultation and no doubt creating an inquiry into possible criminal sanctions.
The problem with revenge sharing is not really a legal one however. The report itself notes that:
Modern technology (such as social media and mobile phones), as well as cross-jurisdictional ownership of media organisations, means breaches of privacy are rarely limited by physical jurisdictional boundaries. For this reason .... the Australian law Reform Commission concluded a state based regulatory approach would not be effective.
We do not believe that a national approach would be effective either, as many of the servers that would host the images or respond to a subpoena for production of any information about who shared the images are not located in Australia. However, as the report sites, 'Criminal remedies also send a strong public message that this behaviour is unacceptable'. Will that stop the offenders from posting the photos? Perhaps not. But at least it will communicate that we agree as a society that this is not acceptable, and that we agree that the person who is the victim is indeed a victim and not somehow complicit or to blame for the behaviour of that individual.
The problem is really, as with many family law issues, not a legal problem, or at least not a problem that the legal system can solve. Even if there was a tort or crime of invasion of privacy how would you prove who shared the image? Other solutions are needed in addition to the government's public stance (by making it criminal) that this is not acceptable behaviour.
When I started researching this article I found that googling the terms 'revenge porn' and 'revenge porn statistics' resulted in no response. It was only after I entered 'revenge porn law' that I started to get responses. This is the sort of response that is desperately needed to stem this problem and unfortunately it falls not to governments, but to private corporations to make these changes. It is for this reason that it is important to continue raising public awareness of these issues so that there is some 'currency' for an organisation taking a public stance against this behaviour.