Taking a stand against jilted ex-lovers, Western Australia has joined the UK and USA to fight the war on ‘revenge porn’.
Revenge porn occurs when the (either actually or imminently) ex-partner posts nude or intimate pictures or videos online without consent. In the absence of appropriate laws, perpetrators have often escaped liability. In response, countries including the United States, Canada, New Zealand and the United Kingdom have been frantically drafting legislation to improve the protection available to victims of revenge porn. In the UK, for example, a newly enacted law makes it a criminal offence to share or publish intimate images without consent, with offenders facing up to two years in jail.
Australia still lacks concrete legislation that recognises and responds to the sexually-based violation and ongoing harm that sharing intimate images without consent causes to victims. However, the latest revenge porn scandal in Western Australia has shed some light on an alternative protection available to revenge porn victims – the “equitable obligation of confidence” owed between ex-lovers.
In this case, the lovers (who were also work colleagues) were in a relationship for a number of months. When the relationship ended, the ditched employee posted sexually explicit photos and videos of his ex-partner on Facebook, with the charming caption ‘Let this b a f***** lesson.. I will s*** on anyone that tries to f*** me ova. That is all!’ Let’s face it, some people just take rejection better than others.
The victim was unsurprisingly mortified and, despite the more or less instantaneous termination of the perpetrator’s employment, was unable to return to work for 2 months (though was paid over the whole of that period).
Given the lack of legislation specifically protecting ‘revenge porn’ victims in Australia, the Supreme Court of Western Australia was encouraged to rely instead upon the equitable doctrine of breach of confidence.
The Court found that the jilted ex had breached this obligation of confidence to his ex-partner because the images and videos were of a confidential nature and obtained in the course of their relationship (which imported the obligation of confidence) and his uploading the images and videos without consent was an unauthorised use of the material. In a ground-breaking decision, the Judge granted an injunction against the perpetrator to prevent further use and publication of the material and awarded the victim more than AU$48,000 in damages for her humiliation, anxiety and distress.
Whilst this provides a necessary remedy to the victims of ‘revenge porn’, it also delivers a warning to employers who may be found vicariously liable for the harm caused to the victim if they don’t act reasonably. As such, it is vitally important that employers treat any alleged or actual cases of revenge porn in the workplace seriously, to ensure they’re not exposed to a compensation claim down the track.
Here there was no real argument open to the betrayed employee that the images had been taken or publicised in the course of the man’s employment. However, it is worth considering whether the outcome might have been different for the employer if explicit pictures or recordings had been created at, say, a work off-site which got a bit out of hand, or if the perpetrator had been a senior director with management responsibility for the other employee. Heading off vicarious liability generally requires an employer to take steps in advance to prevent the relevant misdeeds, but even in the light of this case http://www.employmentlawworldview.com/shedding-a-little-light-on-sex-in-the-course-of-employment/ (sadly later overturned), it is impossible to believe that an employer’s instructions to its staff need to include “not plastering selected vistas of your ex across the internet”.