Unless your surname is “Kardashian”, it is unlikely that being a victim of a ‘Revenge Porn’ attack launched by a jilted ex-lover could ever end well.  However, thanks to the unfortunate experience of a Californian law student who recently filed a copyright lawsuit in the U.S following such an attack, you may never have to experience this fate.

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“What is Revenge Porn?” you ask.  Well, without going into graphic detail (we’ll keep it PG for the IP Whiteboard).  ‘Revenge Porn’ is a form of cyber bullying that typically involves the uploading of nude photos, sex tapes and other like material onto pornographic websites without the consent of the party featured or ‘starring’ in the material.  This sordid content is typically uploaded by a bitter ex-lover to a site (or sites for the particularly unlucky victim), specifically dedicatedto ‘Revenge Porn’ – all in the name of payback. In a recent article published by the New York Times (available here), it was reported that ‘Revenge Porn’ is an ever increasing practice, particularly in times when it is not uncommon for couples to share nude photos or videos using various types of digital media (thanks smartphone!)

“But what on earth does ‘Revenge Porn’ have to do with copyright?” Well, due to the limited avenues available to prevent this type of activity, copyright claims are now being used as a means of seeking damages for the emotional distress and reputational harm caused by ‘Revenge Porn’. Take the case of the Californian law student mentioned above.  This female (let’s call her Jane Doe) had been dating a man for approximately six months after meeting him online.  Things soon turned sour and photos were uploaded onto several ‘Revenge Porn’ sites without her consent.  Extremely embarrassed, and concerned about her budding legal career, Jane filed a copyright lawsuit seeking damages from her ex for violating US copyright law, based on the fact that nude photos and an explicit video were posted online without her consent. Jane Doe’s copyright claim appears quite straight forward.  After all, she took the photos and so she owns the copyright in those photos which were used without her consent.  Therefore, Jane Doe has a claim for copyright infringement, right? Theoretically, but there is a catch. 

According to US copyright law, individuals must register material to be protected with the United States Copyright Office.  This means that victims of ‘Revenge Porn’ (such as Jane Doe) must publically register the very content which is the subject of a ‘Revenge Porn’ attack before being able to bring a claim for copyright infringement.  This is something which most victims are understandably not willing to do, or don’t consider doing, until they find themselves the victim of such an attack.  At this time, it’s highly likely that the damage has already been done.

“What about in Australia?” you may be squeamishly thinking.  Fortunately, the position in Australia is slightly different.  There is no system of copyright registration in Australia.  Copyright owners in Australia do not need to register their copyright before bringing an infringement claim.  However, there is a hurdle that Australian victims of ‘Revenge Porn’ must jump before launching a copyright lawsuit. Say, for example, compromising nude photographs featuring John Smith – a high profile Member of State Parliament with a glass of red wine – surface on a notorious ‘Revenge Porn’ site, posted by a disgruntled ex-girlfriend.  John Smith needs to be able to demonstrate that HE took the photo in order to bring a copyright claim.

Under the Copyright Act 1968 the copyright owner of a photograph is the “author” (s 35(2)) and the “author” of a photograph is the person that took the photograph (s 10(1)).[i] Herein lies the problem – unless the nude photo of John Smith is a “Selfie” the photo will have been taken by someone else and John Smith will not have a copyright claim.  What’s more, the legal situation is more complex if the camera was placed on a tripod without a cameraman, or worse yet, hidden from view.

“Surely there must be another avenue?” you may be wondering.  While there are other avenues, including a claim for breach of confidence or a breach of privacy, obtaining damages is often problematic. The common law in many states tends to provide recourse in limited (read: atrocious) circumstances.[ii]  At a Commonwealth level, the idea to include a statutory cause of action for breaches of privacy has been raised however we are yet to see amendments to the Privacy Act.[iii]Given that Australia’s Privacy Act is as old as this writer herself, it’s time the Act was brought into line with modern technology use (and its pitfalls) and amended to include a statutory cause of action for breaches of privacy covering instances such as these.  While many acts of ‘Revenge Porn’ capitalise upon a careless overshare between trusted lovers, no one deserves to have this material used against them when a relationship turns sour.

All in all, a tip for young players - if you wouldn’t want your mum to see it, think twice before taking that raunchy snap (or, at the very least, ensure that you’re the person both behind and in front of the camera!)

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