Reported instance of revenge porn attracting attention but little in the way of consideration of necessary reform to privacy law

October 11, 2017 |

The Age’s report Police investigate topless photo of woman wearing Richmond premiership medal seems to be an egregious, but not isolated example of the distribution of sexually explicit images without the depicted person’s consent.  It is commonly described as revenge porn though the report does not make it clear that revenge is the intent with the forwarding of a photograph of a topless female wearing an AFL premiership medal.  The report does make it clear that the subject of the photograph did not give consent to it being disseminated.

The article provides:

Police are investigating a Richmond star at the centre of a topless photo scandal after explicit images showing a young woman wearing his AFL premiership medal emerged on social media.

The photo does not identify the woman’s face or the Richmond player to which the medal belongs. Richmond confirmed the AFL integrity unit was also investigating the photo.

A second photograph has also emerged with a woman standing with her back to the camera next to a wall with the Richmond logo on it.

The AFL integrity unit is not probing the second image.

Fairfax Media understands the AFL is providing support to the woman and her family.

It is believed the photo was taken last Saturday night – the night of Richmond’s historic premiership win – and was being circulated on social media by the next morning.

As well as being circulated among the players, the photo was posted to Richmond fan pages on social media.

The woman claims the images of her topless were circulated online and through text messages without her permission or knowledge. Fairfax Media has decided not to run the images.

Representatives of the woman initially took their complaint to the club. Richmond then referred the woman’s representatives onto the AFL who then began dealing with the matter.

Richmond chief executive Brendon Gale said on Wednesday that the club was committed to assisting police.

 “We’re committed to assisting police with any enquiries, should they be required. So at this stage it would be inappropriate to comment any further,” Gale said.

“What I will say is this club feels very strongly about the positive role women [play] at our club and in sport generally. 

“This club feels very strongly about creating an environment where women can thrive and this club feels very strongly about promoting attitudes and behaviours that are respectful of and supportive of women.” 

Victoria Police have confirmed an investigation into the incident is under way.

“Yarra Crime Investigation Unit detectives are investigating an image distributed on social media,” the statement said.

“The image was posted without consent. As the investigation is ongoing it would be inappropriate to comment further.”

Richmond president Peggy O’Neal, the league’s first female club president, confirmed she was aware of the photo.

“I’m just not across the facts,” she told ABC’s Q&A on Monday night.

“It’s just been brought to my attention very recently within the last few hours but I understand that something’s going on.”

An audience member pressed Ms O’Neal further on the alleged involvement of one of Richmond’s premiership players, and whether or not the action to circulate the photo was in line with the AFL’s Respect and Responsibility Policy.

“If it turns out that it is disrespectful to women we certainly don’t stand for that, that’s not what our club’s about and if someone has made a disrespectful and humiliating gesture then of course it will be taken into account,” Ms O’Neal said.

“That isn’t what we’re about, it isn’t what the AFL’s about, I think that our club has shown its for equality, for its inclusiveness, and it wants to promote women.”

It’s not the first time the policy has been brought into question this year, after two AFL officials were sacked for having affairs with younger women.

The AFL said it would not comment on the matter because it is under police investigation.

The Attorney General has commented on the report on SKY New today stating:

SAMANTHA MAIDEN: Just another issues that’s bubbling away today, is in relation to this debate over what’s described as revenge porn although I don’t know that that title would necessarily apply to this case. This is the case of a woman in Melbourne who had a consensual photograph taken of her naked with a premiership medal around her that she alleges was taken by a footballer, the footballer told her he had deleted this image, he then shared it with friends, they then shared it with friends and it’s now gone viral and she’s taken her complaint to the AFL. Is there something that needs to happen in the law now, or is there enough law there to cover it? Is that a crime?

ATTORNEY-GENERAL: Well it can be a crime, and it’s a very important issue this issue of the non-consensual sharing, particularly through social media, of intimate images. It’s primarily a matter for the states and territories to regulate, but the Commonwealth has been active here as well. At the May meeting this year of the Council on Law Crime and Community Safety which is the Attorney-General’s Ministerial Council in COAG, we have decided to formulate nationally consistent criminal laws to deal with the non-consensual sharing of intimate images. As well the Turnbull Government has invested $4.8million with the office of the E-safety Commissioner to address the issue.

SAMANTHA MAIDEN: But quite apart from the legal aspects, I mean you’re a dad you’ve got a daughter and a son, I mean, this is sort of not really appropriate.

ATTORNEY-GENERAL: Of course it’s not appropriate; of course it’s not appropriate. And for a person’s image to be shared on social media without their consent and then potentially to go viral on social media, is a gross affront to their privacy

The dissemination of this material without consent is a criminal offence in Victoria and South Australia.  It is slated for banning in New South Wales. What is lacking in this debate is that a person has to rely on a criminal prosecution to deal with this wrong.  The burden of proof is higher and there is a real chance that little will come of it.  A prosecution is handled by either the informant in the Magistrates Court or the Office of Public Prosecutions for indictable offences. There is no guarantee that a prosecution will occur.  It is also quite unfair to make the police the only vehicles by which this ill can be attacked.  There should be a concurrent civil right to take action for interferences with privacy, as exist in most parts of the common law world.  But there is not such a right here.  This type of abusive behaviour highlights the gap in the civil law.  A person can not, in their own name, easily take action for interferences with their privacy. There is no statutory tort of an invasion of privacy and the courts in Australia do not recognise such a stand alone tort.  What is left for a person who wishes to exercise his or her rights is to rely on breach of confidence, a clumsy, complicated and expensive way of getting redress.  This gap in the law has been known for decades and successive governments have refused to accept the recommendations of the Victorian, New South Wales and Commonwealth Law Reform Commissions to legislate for a statutory right to privacy and a statutory tort for interference with privacy.  It has been a failure of public policy.  In that context it is the height of cheek that the Attorney General complains about a gross affront to privacy.  He could legislate tomorrow and make such an affront a civil wrong, actionable by the wronged.

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