The law is constantly needing to respond and adapt to changes within society. Advances in technology are an indicator of an ever-moving civilisation, with laws struggling to keep up with new and emerging aspects of our society that need closer monitoring and regulation. Revenge Porn in Australia is a clear example of this struggle. Laws concerning Revenge Porn seem to be unreliable in application and ineffective in serving as deterrent or punishment, particularly due to the law differing across states and territories in Australia and evidence in relation to digital crimes is difficult to gather due to the anonymity allowed by the internet. 'Breach of Confidence' rulings in Revenge Porn cases are increasing and are increasingly effective in lieu of a uniform law on privacy matters and demonstrate the adaption of law in response to a changing society.
A study conducted by Nest, La Trobe University in 2015 revealed that 3 in 5 Australians have experienced digital harassment and 1 in 10 people had an inappropriate image of themselves distributed without their consent. These findings suggest that, as well as further awareness and educations of young people in the use of digital images, there is a real need for law reform and more proactive steps to be taken by internet and social media service providers. In response to increasing complaints, Parliament has recently introduced the 'Crimes Amendment (Intimate Images) Bill 2017' to implement updated and stricter penalties for offences addressing the non-consensual sharing of intimate images. This is yet to have proven to be effective in law, with punishments for offenders varying throughout Australia, creating inconsistency when it comes to sentencing. The severity of lack thereof punishments is dependent upon the location of the crime. This variance was demonstrated in a recent A Current Affair news report and interview (www.9news.com.au 22.11.17) that revealed that in NSW the maximum penalty is 3 years imprisonment and $11,000 in fines; in the ACT, the penalty is also 3 years imprisonment but fines can be of up to $45,000; in SA, the penalty is 2 years imprisonment and up to $10,000 in fines and offenders in VIC can receive 2 years imprisonment but no fines will be applied. Although these areas of Australia have varied sentencing, alarmingly QLD, NT and WA are yet to introduce laws specifically relating to image-based abuse. The inconsistency of laws makes sentencing offenders highly difficult as well as determining where the crime was committed and has eventuated in certain criminals remaining unpunished depending upon their location. A news report (www.news.com.au 23.3.18) addresses the issue of several online forums, where men can anonymously request and exchange images of specific people or of women from certain locations. These forums hold thousands of requests from men asking for revealing pictures of women from cities and suburbs across Australia. There is one site that specifically targets Australian women, with men able to add the victims name and location to the pictures on that website. Brendan McAlpine, an online content removalist for 'Internet Removals', works with revenge porn victims to get their names removed from the websites. However, he has described the difficulties in addressing this issue often lie in websites that are hosted in overseas locations and Australian laws are inadequate to pursue complaints. Mr McAlpine describes the situation as an 'uphill battle' when it comes to removing the content and identifying the location of the offenders due to the anonymity provided within technology. The new legislation 'Crimes Amendment (Intimate Images) Bill 2017' aims to locate and prosecute more offenders in relation to revenge porn but it is yet to keep up with the advances in technology and the anonymity that is attached to technological advances.
The current Commonwealth law to deal with revenge porn is defined as an action of 'using a carriage service to menace, harass or cause offence'. But there is yet to be success in showing how these new offences are effective in battling other deficiencies identified in responses to revenge porn offences, these issues refer to ensuring there are effective victim responses to revenge porn – to increase ease of reporting and reduce lack of reporting. This is due to a number of reasons, one being the scope of the distribution of material and that the current laws are being questioned as to whether they are applied to punish criminals or rather just punishing naivety and stupidity. For example, a 2012 revenge porn case, Usmanov v R (2012) NSW DC 290 resulted in a jilted boyfriend sentenced to six-month jail after posting nude pictures of his former lover on social media site 'Facebook'. According to court documents, six pictures were posted that showed his ex-girlfriend fully nude and exposing her breasts and genitalia. The pictures were posted online after she broke up with Usmanov three months prior. The unidentified woman, ran to his residence after he informed her that he had posted the pictures and upon his refusal to take them down, she contacted the police. Usmanov was eventually sentenced to six months in custody but the sentence was suspended on the condition that he entered into a good behaviour bond for a period of six months. This case reveals that the magistrate dealt with it on the basis that Usmanov failed to take them off of the social media site completely and also noted that it was unclear on the evidence of how many people had access to the Facebook page and therefore could not rule on how broad the distribution of the material was. Usmanov told police that he 'put the photos up because she hurt me, and it was the only thing I had to hurt her'. This case, although involving criminal activity stimulates the question as to whether the law is punishing stupidity, immaturity and naivety rather than criminality. Attorneys and law officials believe that the crime is wrong and should not be committed but is targeting the wrong offenders and perhaps it is the website operators that should be held accountable. Considering the lack of evidence received from the online social media site, the magistrate was unable to consider all aspects and Usmanov's punishment was reduced. The law is struggling to keep up with technological advancements, when there is a lack of evidence provided by online sources. As technology continues to develop, so does the chances of relevant information and evidence becoming lost behind screens.
Revenge porn laws seem partially effective in keeping up with technology by allowing victims of revenge porn to make cases under 'breach of confidence' actions that operate to protect information that is private and confidential. A Slater and Gordon article (www.slatergordon.com.au 19.5.17) conveys that 'traditionally, breach of confidence has only been applied very narrowly but courts have recently been willing to expand its application to instances of revenge porn'. Slater and Gordon Senior Associate Jeremy Zimet states that this cause of action was applied to revenge porn cases by the Supreme Court of WA in 2015 and the leading case in this area is Wilson v Ferguson. The Wilson v Ferguson (2015) WASC 15 case awarded Caroline Wilson $48,404 after she sued her former partner for breaching her confidence by posting 16 photos and 2 videos showing her 'either naked or partially naked and in some cases, engaging in sexual activities' on his Facebook page in August 2013. In this matter, Justice Robert Mitchell found the ex-boyfriend to have breached Wilson's confidence and caused her significant 'humiliation, anxiety and distress'. It was deemed that 'if she had not specifically created this 'obligation of confidence', it is possible the case would have been decided differently, but a court could also find that there was an implied and unspoken obligation to keep the images private due to their explicit and personal nature. This case of breach of confidence was a significant step in revenge porn cases. The issues raised in the case demonstrate how an Australian court exercises equitable jurisdiction and how it should respond to subsequent cases of these specific matters. Another matter concerning the effectiveness of the law is the significant support resources that have been created in order to minimise and eliminate the issue of revenge porn. The Australian Government has established funded programs such as 'E-safety' and 'Safety Net Australia' aim to address ongoing and emerging technological issues impacting the 'safety, privacy and accessibility rights' of victims of issues such as stalking, sexual and domestic violence and online issues like revenge porn. These types of services provide a range of resources and advice relating to dealing with revenge porn issues, as well as working to get unwanted content removed from online. The A Current Affair news report and interview (www.9news.com.au 22.11.17) as mentioned before, includes a story of Noelle Martin who was a victim of what is known as 'morph porn' committed by an offender who is most likely located overseas. The article briefly speaks of E-safety and how victims like Noelle are encouraged to contact E-safety and report unwanted images as well as reporting the matter to police. Government establishment of programs like E-safety and Safety New Australia are encouraging as these are assisting in raising awareness as well as providing resources to help victims of revenge porn. They aim to delete and reduce the number of unwanted images on the internet and social media and help with providing research reports and information in revenge porn cases.
'Breach of Confidence' actions and government funding to support education and responses for victims of digital crimes has supported improvement in the consistency and application of law in Australia and is a clear example of how laws adapt to changes in society. While this is positive, it is clear that laws need to move faster and more needs to be done to protect people, particularly young people, from becoming victims to crimes in which there is insufficient and inconsistent legal re-course available.