The dangers of posting ‘intimate’ photographs without consent

Posting intimate or explicit photographs of your ex-partner on the Internet can be unlawful and may expose you to substantial financial liability, as highlighted by a recent decision of the Supreme Court of Western Australia.[1]

In that case, the “jilted ex-lover” published on his Facebook page several sexually-explicit images and videos of his former partner, which she had shared with him during the course of their relationship. He also posted an abusive message indicating that he had posted the material as an act of revenge. The images and videos were visible to his approximately 300 Facebook contacts, many of whom were work colleagues of both him and her.

The court held that because the images and videos had been shared in the context of an intimate and trusting relationship, there was an implicit understanding that they were ‘confidential’ and were not be disseminated to any other person without prior consent. As a result, the court found that by posting the images and videos on Facebook the defendant had breached his duty of confidence. Although not relevant in this case, similar conduct could also constitute an infringement of copyright, effectively giving victims two causes of action to rely on.

In this case, as well as prohibiting the defendant from ever again disclosing the images and videos to any other person, the court imposed financial damages of $35,000 to compensate the plaintiff for her “embarrassment, anxiety and distress”, a fairly rare outcome.

The case echoes the recent criminal conviction of a man in the United States who set up a “revenge porn” website that hosted sexually explicit images of women submitted by angry ex-boyfriends or ex-husbands. A similar scenario is now possible in Victoria: in October 2014 the Summary Offences Act was amended to include new offences relating to the distribution of sexually explicit images without consent. Other States and the Commonwealth are reportedly considering enacting similar laws.

Share this