Revenge Porn – It Can Happen To You!

*THIS BLOG DOES NOT CONSTITUTE LEGAL ADVICE ON CRIMES, BREACHES OF CONFIDENCE OR OTHER ISSUES RAISED. IF YOU WISH TO SEEK ADVICE IN RELATION TO THIS MATTER, PLEASE CONTACT @KVALEGAL OR ANOTHER LEGAL PROFESSIONAL*

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So, the other day I was talking to JM from SWOPnsw (Hi JM!) and she made me aware of a decision that had been handed down in Western Australia in January. With Christmas and New Year, I think it snuck up on me and did not register on my radar until now – but now that it has been drawn to my attention, I immediately felt the need to blog about it.

What is “Revenge Porn”?

I do not know the origins of how it became entitled “Revenge Porn” but its a term that is being heavily used by the media at the moment to label the following – where someone engages in a sexual activity on a video/mobile device and another person shares that content on, say Facebook, Twitter or even YouTube, without the consent of the person that “stars” in the content. There are a whole heap of issues that we could focus on here (ie. like, for example, naming it “revenge porn” to begin with) but I want to stick to the most important part of this issue – and that is, personal “performance” of explicit acts, sent to another in confidence, and sharing it without the person who conducted the personal “performance” consenting for the content to be publicly shared.

What Happened In Western Australia?

The case can be found here —> http://www.austlii.edu.au/au/cases/wa/WASC/2015/15.html

I am not going to share the full facts of the case because the attached legal report on the matters does a very adequate job at explaining what happened —> https://inforrm.wordpress.com/2015/02/08/case-law-australia-wilson-v-ferguson-damages-of-48400-for-explicit-facebook-photos-and-video-yvonne-kux/

Essentially, the situation was classic “revenge porn”. Content was shared between two people whilst in a relationship, and when that relationship broke down, one of the parties decided to share the content (videos and pictures) with Facebook. Not only did he share it on Facebook, he also shared it around the workplace (that they both worked at). The applicant lost her job and suffered extraordinary emotional distress as a result.

The Western Australian Supreme Court found that the party who shared the content was a breach of confidence. The victim was awarded significant damages and a permanent injunction was put in place to ensure the content was never shared or publicised again.

Why Does This Case Mean Something to Me?

(1) It gives me the chance to talk about what happens when sex workers are filmed/photographed during bookings and that content is shared. I can give tips on how to deal with situations where that content is shared.

(2) For those who have been following my blog for a little while, will remember my blog post that wrote about “outing” sex workers and I pondered the notion that we could possibly run a “breach of confidence” style argument – see my blog here —> https://kvalegal.wordpress.com/2015/01/02/privacy-its-more-than-just-a-name-its-about-your-life/

It was one of the first blogs I wrote and I threw out the idea that we may be able to run a “breach of confidence” style argument if a sex worker found herself in a situation where she was on the verge of being, or had been, outed. At the time of writing the blog, I made the disclosure that I was not entirely 100% sure an argument would “stack up” because there wasn’t really that much direction from Australian courts about how they would treat this “breach of confidence” concept. Well I think we now have further direction as a result of this case.

I am going to talk about two things:

(1) a brief look at the risk of sex workers filming their activities for clients and those clients sharing that information.

(2) a more in depth look into why this judgement may enforce my argument that we can use the “breach of confidence” argument in an “outing” situation;

Breach of Confidence – Sharing Photos and Videos of Sexual Activities While Working

  • This case shows that if you film yourself or take photos of yourself, or if someone takes them for you, and so long as you communicate to the person receiving this content that it is confidential, and that person (without authorisation) shows that content to someone else, then you may have a claim for a breach of confidence against the person who shares that information.
  • If this occurs, the judgement says that they will not only consider the damages that you suffered as a result of the sharing of the information (such as loss of wages, emotional distress), they will INJUNCT (ie. stop/prevent) the further publishing of the material permanently so that the content can never be shared again. If that person who is under an injunction from the Supreme Court to not share the information BREACHES the injunction, then we enter into further litigation for a breach of an injunction and from experience, the Courts tend not to like people who breach injunctions.
  • Intellectual property issues aside, there is really nothing contained in this case that suggests that just because that person may receive the content for a fee (often sex workers charge money for the filming/pictures), that means you cannot run a breach of confidence (I’m happy to be debated on with respect to this issue). The most important thing is that you EXPLICITLY state that the content is CONFIDENTIAL and any unauthorised use of that content would be a breach of confidence.
  • This case shows that you do not even need a confidentiality agreement when sharing the content. You just have to be very clear when providing that content that it is very confidential and that you expect that it should remain confidential. Entering into an agreement would be just an added layer of protection (I still recommend that confidentiality agreements be entered into – but this case shows that its not entirely necessary – it would just make the proof that the “confidentiality” discussion was had).

Breach Of Confidence – Outing Sex Workers’ Personal Details

Mitchell J of the Supreme Court of Western Australia states the following:

1. This case raises concerns about how an Australian court exercising equitable jurisdiction should respond to the publication…to a broader audience via the internet [of images] which had been confidentially shared between the sexual partners during the course of their relationship [1] – (note: Australian courts have never had to deal with breach of confidence with respect to internet publication before).

2. Courts are prepared to restrain the publication of confidential information that is improperly or surreptitiously obtained or of information imparted in confidence which out not to be divulged [43] – this is GOOD! This supports my argument that when a woman provides her real name and details to, say a client and that sex worker makes it absolutely clear that the information is being imparted in confidence and should not be divulged, then we MAY have a breach of confidence situation here.

3. The essential argument for a breach of confidence is as follows: 1) information is of a confidential nature 2) the importance of its confidentiality is expressed; 3) there is unauthorised use of this information [46] But he looks at a case called ABC v Lenah Game Meats [2001] HCA 63 where the discussion is had about what constitutes “confidential information”. It draws a line between what is is private and what is not and Gleeson J suggested that “the requirement that disclosure of observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private.” – This is a bit problematic but I don’t think that it is something that cannot be overcome. If we argued that a person of ordinary sensibilities would be offended by the sharing of their real name in conjunction with the revelation that the person is a sex worker, we may get over this definitional hurdle.

4. This case also gives me a clear view of what can come of running a claim of breach of confidence – and that is access to certain “remedies” (ie. damages, injunctions, equitable compensation). This doesn’t need much discussion at this stage, as this area of law is generally for discussion between lawyers. But this case definitively states that they will not hesitate to (1) award compensation for emotional distress; and (2) permanently injunct people from sharing the information again.

Happy to discuss this further.

KVA

@KVALEGAL

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