Family Law Blog

Revenge porn in family law

Posted by Jacob Smith on 23 Nov 2017

Assisted by Madison Kelly

A motive of revenge can very easily make its way into family law matters. I’m sure we’ve all heard of those spouses who fight to the death in the Family Court just to aggravate the other party and make them spend more money, those who withhold children for no reason other than to hurt the other party, and those who make threats in order to scare their spouse into prejudicial agreements - but how far will people go?   

Revenge porn refers to a person sharing intimate material of another person without their consent. Often, this sharing takes place online and with technology and social media growing at a rate faster than the law has been able to keep up with, Parliament has been forced to play catch up with revenge porn now a criminal offence under the Crimes Amendment (Intimate Images) Act 2017 (NSW). 

You may have heard of revenge porn, often in the context of high school teenagers and young people, however, revenge porn has unfortunately found a place with adults in family law matters overseas and it is likely that it won’t be long before this trend becomes evident in Australian matters too. 

In family law matters, often spouses will threaten their partner in order to get an outcome they want, or merely for revenge. Threatening your spouse, among various other physical, emotional, sexual, verbal, social and financial abuses, amounts to family violence under section 4AA of the Family Law Act. However, in the age of increased technology and social media, the means by which these abuses can occur are ever-expanding with revenge porn being a key example.  

Australian cases in this area are limited, however in the US a woman was blackmailed by her husband who threatened that he would distribute all of her nude photographs online unless she lied in court about no longer needing spousal maintenance payments from him. With the potential humiliation and reputation damage that occurs for victims if their intimate photographs are shared, it’s obvious how victims may make decisions under undue influence that go against their interests. As decisions in the Family Court relating to property need to be “just and equitable” it is important that threat based decisions are rejected. 

Family law proceedings are already straining, notwithstanding any extra pressures of revenge porn. The good news is that Facebook has come up with a way to prevent these situations from transpiring – at least through its channels. The social media giant is testing a system where people can send in their provocative photographs, which Facebook will extract data from. Image recognition will be used to detect those images and automatically delete them if they are uploaded. 

If the Facebook trial is successful, spouses can protect themselves from that pressure by sending Facebook all provocative images they may have sent to their ex-spouse in the past to ensure they aren’t uploaded on the site. Of course, this only applies to cases where the spouse shares the material on Facebook. There are still many other platforms where that material could be shared and therefore the risk of revenge porn, and its implications on family law proceedings, is still prevalent. It is also unclear whether Facebook’s initiative applies to videos. Regardless, Facebook is definitely taking a step in the right direction and if other social media platforms, websites, phone providers etc. all follow in Facebook’s footsteps and attempt to implement a similar initiative, then in coming years the threat of revenge porn may be greatly reduced. 

In terms of reducing risk from the get go, some people lack empathy for victims of revenge porn as some believe they should eliminate that risk by not sharing that kind of material in the first place. From a legal perspective, a victim’s lack of consent to distributing material to anyone other than their intended recipient constitutes a crime and any moral beliefs on how victims should and should not behave is irrelevant for revenge porn laws, not to mention erroneous. 

For the sake of discussion, it is important to note that even if they wanted to, victims are often unable to protect themselves from risk. Whilst many assume that revenge porn only occurs when a couple create images or video together which are shared post break up, there are many different revenge porn scenarios. For example, where a partner takes photos or video of the other person without their knowledge, where a person never sent provocative material to any recipient but had their phone hacked, or where photos are stored on a joint computer or iCloud and the ex-spouse gains unintended access. These scenarios reinforce why protection under revenge porn laws is so important.

It is interesting to see what will happen in family law matters with the introduction of these protections, and also whether Facebook will become a valid method of preventing incidents from occurring in the first place.

For more information on the Crimes Amendment (Intimate Images) Act please contact: