Non-consensual porn and the responsibilities of online intermediaries

Abstract

This paper considers the legal options of victims of the non-consensual distribution of sexually explicit media - sometimes known as 'revenge porn'. The ALRC has called for Australia to introduce a new tort for serious invasions of privacy, and the Senate Legal and Constitutional Affairs Committee has recently reinforced the need for stronger penalties. A private members' Bill was introduced in the last Federal parliament, but has since lapsed. Each of these proposals focuses primarily on the wrongful acts of the perpetrator. As a deterrent and a strong signal of social opprobrium, they may be partially effective. They do not, however, consider in detail how victims may be able to seek some relief once material has already been posted online. In this paper, we consider explicitly what role internet intermediaries should play in responding to abuse online. The challenge in developing effective policy is not only to provide a remedy against the primary wrongdoer, but to impose some obligations on the platforms that host or enable access to harmful material. This is a difficult and complex issue, but only by engaging with this process are we likely to develop regulatory regimes that are likely to be reasonably effective.