ALRC submission to Senate inquiry into ‘revenge porn’

Ms Sophie Dunstone
Committee Secretary
Senate Standing Committee on Legal and Constitutional Affairs
PO Box 6100
Parliament House
Canberra ACT 2600

14 January 2016

Dear Ms Dunstone,

Submission to inquiry into so-called ‘revenge porn’

The Australian Law Reform Commission (ALRC) welcomes the opportunity to make a submission to the inquiry being conducted by the Senate Standing Committee on Legal and Constitutional Affairs into so-called ‘revenge porn’.

Publishing private sexual images of a person without their consent may often amount to a serious invasion of privacy. Two ALRC reports about privacy may therefore be of particular interest to your inquiry: For Your Information: Australian Privacy Law and Practice, Report 108 (2008) and Serious Invasions of Privacy in the Digital Era, Report 123 (2014).

In the 2008 report, the ALRC recommended that Federal legislation should provide for a statutory cause of action for serious invasions of privacy. In 2013, the ALRC was asked to design such a cause of action in detail, and to consider any other legal remedies for serious invasions of privacy. This inquiry concluded with the publication of the ALRC’s 2014 report. The 2008 and 2014 reports are both available on the ALRC’s website and the Summary Report for the 2014 report is attached to this submission.

Many stakeholders expressed to the ALRC their support for introducing a statutory cause of action for serious invasions of privacy, and some suggested that it would help deter people from publishing ‘revenge porn’, by making such conduct clearly unlawful, and provide a key remedy for victims of this conduct. There are civil causes of action for invasions of privacy in New Zealand, the United Kingdom, the United States and Canada.

The essential elements and features of the cause of action recommended in the ALRC’s 2014 report are as follows:

• the invasion of privacy must be either by intrusion into seclusion or by misuse of private information;
• it must be proved that a person in the position of the plaintiff would have had a reasonable expectation of privacy in all of the circumstances;
• the invasion must have been committed intentionally or recklessly—mere negligence is not sufficient;
• the invasion must be serious;
• the invasion need not cause actual damage, and damages for emotional distress may be awarded; and
  the court must be satisfied that the public interest in privacy outweighs any countervailing public interests.

The report also recommends the defences and remedies that should be available. For example, the report notes that publishing ‘revenge porn’ may justify an award of exemplary damages:

Posting on the internet of so-called ‘revenge pornography’—intimate photographs or video of an ex-partner or ex-spouse without their consent—may be an example of an outrageous invasion of privacy that may justify an award of exemplary damages.[1]

The introduction of a cause of action for harassment was also discussed in the 2014 report. The ALRC recommended that if a statutory cause of action for serious invasions of privacy were not enacted, state and territory governments should enact uniform legislation providing for a statutory tort of harassment.[2] This would provide protection and redress for individuals who experience some of the most serious invasions of privacy, such as the publication of ‘revenge porn’.

The statutory torts for serious invasion of privacy and harassment that the ALRC has recommended would of course target a broader range of conduct than ‘revenge porn’.

Chapter 13 of the ALRC’s 2014 report contains another recommendation that would help provide a more certain civil redress for victims of ‘revenge porn’. Currently, in an action for breach of confidence, compensation for emotional distress, falling short of a recognised psychiatric illness, is generally not available. The ALRC therefore recommended that, if a statutory cause of action for serious invasion of privacy is not enacted, the equitable action for breach of confidence be strengthened by legislation enabling courts to award compensation for emotional distress.[3]

The ALRC also recently provided a submission and gave evidence to an inquiry of the Law and Justice Committee of the NSW Legislative Council, Remedies for the serious invasion of privacy in New South Wales, which your Committee may also find useful.[4]

This submission has focused on recent work of the ALRC that might be relevant and of interest to your inquiry, but other policy responses to ‘revenge porn’—such as creating new criminal offences—might also be necessary.

We trust this submission is of assistance. If you require any further information, please do not hesitate to contact the ALRC.

Yours sincerely,

Professor Rosalind Croucher AM