Peter A Clarke

There are limits to legislation criminalising revenge porn, the publication of  revealing or sexually explicit images or videos of a person posted on the Internet without the consent of the subject in order to cause them distress or embarrassment, without providing the victim with an actionable cause of action.  The first limitation is that a complaint to the police may not result in a prosecution.  The burden of proof is much higher.  In some cases proving the accused took the image or posted it may be an issue though in the typical revenge porn scenario that is not common problem.  The other potential problem from the point of view of the victim is that how a matter is dealt with is a matter for the prosecution, whether in the form of a plea and the agreed statement of facts and the submissions on penalty. That is not to say the prosecution are less than professional but matters are resolved all the time.  While the victim may be kept informed the call is always the prosecutions to make.   What is required is an actionable civil claim by victims, in the form of either a statutory or common law basis, under the tort of invasion of privacy.  And that is what is missing in Australian law.  Claims in Australia must rely on equity, breach of confidence and misuse of private information, to bring a civil claim.  That was what Ms Chambers did because at the time of the acts giving rise to her action the Supreme Court had not recognised a tort of invasion of privacy, which it did subsequently.  It is a more complicated and unwieldy form of action which is very much a second best option to a tortious claim.  Australia remains one of the few places in the common law world without a specific actionable right to enforce privacy rights.  It remains a significant gap in the law and a ongoing failure of public policy.

The BBC reports that Chrissy Chambers, described as a Youtube celebrity, brought an action against an ex partner who posted 6 videos on a pornographic site after they broke up, from December 2009 until January 2012.  Ms Chambers found out about the posting in June 2013.  Her efforts to bring criminal charges were unsuccessful, primarily because a criminal offence relating to revenge porn had not been enacted at the time of the posting.   She commenced proceedings in the UK High Court and obtained a settlement involving an undisclosed sum of money, her costs, destruction of images held by the defendant and the copyright to the images posted.

The BBC article provides:

A US YouTube personality has been awarded damages from a British ex-boyfriend who posted videos of them having sex onto the internet.

Chrissy Chambers became a leading “revenge porn” campaigner after she was alerted to the clips.

The High Court in London heard that the accused – who cannot be named for legal reasons – had accepted liability for his unlawful activity.

He also agreed to pay an undisclosed sum as well as to cover legal costs.

Ms Chambers’ lawyers have described the sum as “substantial”.

“[This] should serve as a severe warning to those who seek to extort and harm with revenge porn: you cannot do this with impunity, and you will be held accountable for your actions,” said Ms Chambers following the case.

“To every victim of this insidious kind of attack, I am here to say: You can fight back, and win. You will heal and move on – and you will not have to take those steps alone.”

The singer and comedian celebrated her successful civil claim by proposing to her girlfriend and YouTube co-star, Bria Kam, on the steps of the court.

Ms Kam said yes.

England and Wales made “revenge porn” a criminal offence in 2015, but Ms Chambers said she had been unable to take advantage of this as the law does not apply retrospectively.

The court had heard that the accused had filmed the sexual activity on 3 September 2009 at Ms Chambers’ home in Atlanta, Georgia. He subsequently uploaded six videos to a free-to-watch pornographic site between December the same year and January 2012, after they had split up.

Some of the clips’ titles contained Ms Chambers’ name and her age at the time, which was 18.

Ms Chambers, who is now 26, said that she had not been aware that she was being filmed at the time, and only learned of the videos’ existence in June 2013, 19 months after they had been posted.

Since the accused owned the copyright to the clips, Ms Chambers said she was unable to force the site to remove them. She said they had been copied and shared to dozens more sites since.

She initially attempted to pursue criminal charges, but when this failed she crowdfunded $36,900 (£26,750) to file the civil case.

Ms Chambers’s lawyer told the court that some of the singer’s YouTube followers had mistakenly believed she had intentionally been involved in making pornography and had posted messages saying that they no longer wanted to follow her.

The lawyer added that the YouTuber had been diagnosed with post-traumatic stress disorder (PTSD), and continued to have flashbacks and nightmares.

As part of the settlement, the accused has agreed to destroy any remaining images of Ms Chambers in his possession and has handed over copyright to the uploaded films.

This means Ms Chambers can now demand that the sites hosting the material delete it.

The story has been reported in the Guardian and the Australian (on a pick up from the Times) which provides:

Chrissy Chambers has more than 750,000 subscribers to her YouTube channel, aimed mainly at teenage girls, that she operates with her partner, Bria Kam.

The 26-year-old blogger, based in Los Angeles, brought the claim for breach of confidence, misuse of private information and harassment at the High Court against the man, who can be identified only as DCR.

Ms Chambers celebrated her victory by proposing to Ms Kam on the steps of the High Court. She tweeted: “I could not be more elated to announce that I won my revenge porn case and also asked the most incredible girl to marry me. I’m the luckiest girl in the world!!!!!”

The claim, thought to be Britain’s first civil law suit over revenge porn, came about after Ms Chambers had a romantic relationship with the man from 2008 to 2009. Alex Marzec, for Ms Chambers, told judge David Eady that DCR, without Ms Chambers’s knowledge or informed consent, had recorded them engaging in sexual activity at her home in Atlanta.

In 2011 and 2012, again unbeknown to Ms Chambers, DCR uploaded six videos to the Redtube.com website. The titles of three of the films contained Ms Chambers’s full name and two of them contained her age at the time of recording: 18.

In June 2013 Ms Chambers was alerted to the videos and contacted the website to have them removed. By then they had been online for 19 months and Ms Chambers received numerous comments and messages from YouTube users who wrongly believed that she had been intentionally involved in pornography and who no longer wished to view her YouTube content.

Ms Marzec said Ms Chambers had suffered emotional and psychological harm resulting, for a time, in substance abuse and relationship difficulties. She had post-traumatic stress disorder ­diagnosed and had trauma therapy but continued to have flashbacks and nightmares.

Before bringing her case, counsel said, Ms Chambers started a crowd-funding campaign to pursue the claim, to protect and vindicate her privacy rights and to raise awareness of the suffering of revenge-porn victims.

Ms Marzec said DCR accepted liability for his unlawful activity and regretted the distress caused. He had also assigned his copyright in the videos to Ms Chambers and measures had been taken to ensure the deletion and destruction of all remaining images and videos containing her likeness that were in his possession.

DCR would pay Ms Chambers substantial damages and her costs. Ann Olivarius, solicitor for Ms Chambers, has explained that they had not identified DCR because: “We’re taking the high moral ground”.

When Ms Chambers launched her crowd-funding campaign for $US25,000 two years ago she said it was her last chance for justice.

She could do nothing in the United States when she found out about the videos because they had been uploaded in the UK.

The incident happened before criminal laws against revenge porn took effect in Britain, and the material was recorded beyond British jurisdiction.

“Although the new law has come in, they are not retrospective, so my only remedy is in the civil courts to get copyright ownership of the videos,” Ms Chambers said.

“This experience nearly ruined me. It has cost me my mental and physical wellbeing. I want to use my experience to help people who may be suffering the way I did, that is the only thing that will make this worthwhile.”