Victoria and South Australia are so far the only two Australian states
to introduce specific legislation to make it a criminal offence to commit acts
of ‘revenge porn’, writes Joshua Dale.
However,
other states as well as the Commonwealth are looking at doing the same as the
issue continues to gain prominence in the community.
Revenge
porn is characterised as the malicious sharing of private and intimate
photographs, videos and other materials without consent and the distribution of
which is designed to inflict embarrassment and worse on the victim.
Most
notably the very concept of ‘revenge porn’ is inextricably linked with the
internet and mobile devices and applications that has made the act of sharing
such materials not only easy, but has also exponentially expanded the possible
audience of such images.
Hence,
the capacity of revenge porn to cause significant hurt is enormous. Not
surprisingly, governments are now moving to act to provide criminal sanctions
to address victim impacts, with Victoria and SA already introducing such laws,
and New South Wales and Western Australia flagging that they are intending to
do the same.
NSW
has explicitly flagged that it will “seek to criminalise the creation and
distribution of sexually explicit images without consent”, with
Attorney-General Gabrielle Upton announcing that while legislation is yet to be
drawn up and penalties are yet to be decided, it is likely the proposed new
laws will involve a jail term.
In
parallel to the moves to introduce criminal sanctions, it is clear that other
areas of the law are also moving to address the impacts of the newly emerged
issue on which the community is seeking action.
Criminal
sanctions are one part of the response to revenge porn and it is clear that the
civil jurisdiction also has a key role to play in delivering redress for
complainants, particularly in the workplace context where injury is suffered.
The
fact that Victoria and SA have already enacted criminal sanctions, and the
flagging of the same by NSW and WA and the likely introduction of similar laws
at a national level, will place significant pressure on employers to ensure
that they are providing employees a safe and harassment-free workplace.
Clearly,
having private sexual material shared publicly is humiliating, embarrassing.
and a significant breach of trust. However, for employers, there is the added
implication that they are vicariously liable for the actions of their employees
in undertaking their employment.
For
example, if an incident of revenge porn occurred in a workplace setting and
injury is suffered, the employer would potentially be exposed to a claim under
workers’ compensation provisions.
This
claim, if successful, could result in damages paid for any psychological injury
suffered. Compensation can include economic loss, medical expenses and lump sum
compensation in the NSW workers’ compensation jurisdiction.
In the
workplace context, the potential for employers to be exposed to civil liability
is a real threat as well, impacting sub-contracting arrangements and companies
that operate subsidiaries in different jurisdictions.
As new
laws are introduced, we believe that lawyers advising employers and workplace
managers need to start to come to grips with the real prospect of workers’
compensation and other civil claims in respect of incidents of revenge porn.
This
preparation should include the development of effective policies and procedures
in respect of workplace conduct that establishes standards of acceptable
behaviour.
These
policies need to identify that such incidents of revenge porn are now likely to
become criminal acts and as such are unacceptable in any safe workplace.
While
pressing criminal charges may help victims achieve a sense of justice, it may
also be possible for victims to seek justice in the civil realm and receive
compensation for their embarrassment, anxiety and distress
Civil
law options available include seeking an injunction to stop further publication
of images or other embarrassing materials recognising that a ‘breach of
confidence’ has occurred in which:
1. The information was of a confidential nature;
2. The information was communicated or obtained in
circumstances importing an obligation of confidence; and
3. There was unauthorized use of the information.
The
consequences of such actions are already a matter of record.
In at
least one case of revenge porn, more than $30,000 in damages was paid as a
result of the significant embarrassment, anxiety and distress suffered by the
complainant as a result of the defendant sharing the images.
The
implications of revenge porn as a workplace issue are abundantly clear, and
employment lawyers and their clients need to ensure that they are taking the
necessary steps to ensure they are addressing this fast- emerging legal issue.
Joshua Dale is an associate at Carroll & O'Dea
Lawyers
No comments:
Post a Comment