Federal Court of Australia

eSafety Commissioner v Rotondo [2023] FCA 1296

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 122(1)(b) of the Regulatory Powers (Standard Provisions) Act 2014 (Cth) (RP Act), the Respondent is required, as soon as practicable, to take all reasonable steps to remove or have removed, from the website mrdeepfakes.com, the 2 intimate images with respect to Depicted Person 1 and Depicted Person 2 referred to in the Removal Notice given to him on 5 May 2023 and the 7 intimate images referred to at paragraphs 36, 38 and 40 of the affidavit of Luke Boon affirmed on 19 October 2023 with respect to Depicted Person 3, Depicted Person 4, Depicted Person 5 and Depicted Person 6.

2.    Pursuant to s 122(1)(a) of the RP Act, the Respondent is restrained from posting any intimate image on any social media service, relevant electronic service or designated internet service, each within the meaning of s 5 of the Online Safety Act 2021 (Cth).

3.    Orders 1 and 2 operate until 4:00 pm AEST on 3 November 2023, or until earlier order of this Court.

4.    The Respondent notify the Court and the Applicant in writing of the steps taken to comply with Order 1 by no later than 9:30 am AEST on 3 November 2023.

5.    The matter be listed at 9:30 am AEST on 3 November 2023.

6.    Save for what is necessary to comply with the Order, the parties shall not publish the contents of this Order, the Schedule to this Order, or the affidavit of Luke Boon affirmed on 19 October 2023.

7.    There be liberty to apply.

8.    Costs be reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

SCHEDULE

1.    For Order 1:

(a)    Depicted Person 1 is [removed]

(b)    Depicted Person 2 is [removed]

(c)    Depicted Person 3 is [removed]

(d)    Depicted Person 4 is [removed]

(e)    Depicted Person 5 is [removed]

(f)    Depicted Person 6 is [removed]

EX TEMPORE REASONS FOR JUDGMENT

THOMAS J:

LEGISLATION

1    The application today is an application for the removal of certain intimate images from a website and an interim injunction restraining Mr Anthony Rotondo AKA Mr Antonio Rotondo (the respondent) from posting any intimate image on any social media service, relevant electronic service or designated internet service arising from the alleged contraventions of s 75 of the Online Safety Act 2021 (Cth) (Act).

2    Section 75 deals with “posting an intimate image” as follows:

(1)    A person (the first person) who is an end-user of:

(a)    a social media service; or

(b)    a relevant electronic service; or

(c)    a designated internet service;

must not post, or make a threat to post, an intimate image of another person [the depicted person] on the service if:

(d)    the first person is ordinarily resident in Australia; or

(e)    the [depicted] person is ordinarily resident in Australia.

…

…

3    Section 75(1) does not apply if the depicted person consented to the posting of the intimate image by the first person.

4    Section 15 of the Act sets out the circumstances in which the material is an “intimate image” for the purpose of the Act. In relation to “Depiction of private parts”, s 15(2) provides:

Material is an intimate image of a person if:

(a)    the material consists of a still visual image or moving visual images; and

(b)    the material depicts, or appears to depict:

(i)    the person’s genital area or anal area (whether bare or covered by underwear); or

(ii)    if the person is a female or a transgender or intersex person—either or both of the person’s breasts;

in circumstances in which an ordinary reasonable person would reasonably expect to be afforded privacy.

5    In relation to “Depiction of private activity”, s 15(3) provides:

Material is an intimate image of a person if:

(a)    the material consists of a still visual image or moving visual images; and

(b)    the material depicts, or appears to depict, the person:

(i)    in a state of undress; or

(ii)    using the toilet; or

(iii)    showering; or

(iv)    having a bath; or

(v)    engaged in a sexual act of a kind not ordinarily done in public; or

(vi)    engaged in any other like activity

in circumstances in which an ordinary person would reasonably expect to be afforded privacy.

6    Section 16, which relates to the issue of “Non-consensual intimate image of a person”, relevantly describes “non-consensual” as being where “the [subject] did not consent to the provision of the intimate image on the service”.

7    Section 78 empowers the eSafety Commissioner to issue a removal notice to the end-user to remove images.

8    Section 80 provides that failure to comply with the removal notice exposes a person to civil penalties.

9    Section 165 of the Act enlivens the Regulatory Powers (Standard Provisions) Act 2014 (Cth) (Regulatory Powers Act) and confirms that ss 75 and 80 of the Act are enforceable through injunctive relief.

10    The eSafety Commissioner has powers of enforcement and standing to seek orders under the Act and, in that respect, I refer to s 162 of the Act and Part 4 of the Regulatory Powers Act.

11    Broadly, these proceedings seek declarations as to the contraventions of ss 75, 80 and 83 of the Act as well as pecuniary penalties in respect of each contravention.

12    Today, the claim is for interim relief and is being dealt with on an ex parte basis. The reasons for this are outlined in the affidavit of Mr Luke Boon, the Acting Executive Manager of the Investigations Branch of the Office of eSafety Commissioner, and are related to the presence of the respondent in Australia.

EVIDENCE

13    The eSafety Commissioner read the originating application, an open affidavit of Mr Boon and the eSafety Commissioner’s submissions.

14    The eSafety Commissioner handed up a confidential affidavit, which was handed back at the conclusion of the proceedings. The confidential affidavit contained details of the names of depicted people and the URL references.

15    The eSafety Commissioner received complaints from a number of people and undertook investigations following receipt of those complaints.

16    In the complaint documents, the depicted persons each say that no consent was given to the posting of the images.

17    The eSafety Commissioner took the approach of filing two affidavits – an open affidavit and a confidential affidavit which was handed up – on the basis that this approach was in the interests of justice and otherwise consistent with the purpose and objectives of the Act. It would be contrary to both justice and the Act if, in taking action to ensure compliance with the Act, the eSafety Commissioner, through legal proceedings, compounded the publication of the intimate images. I agree with that course.

18    In any event, the redactions are minor and a reasonable departure from the otherwise important principle of open justice.

19    The affidavit of Mr Boon sets out the investigations taken by the eSafety Commissioner’s staff which identified the respondent as the person who posted the relevant images. These investigations are outlined in [15]–[25] of the affidavit.

20    The affidavit also referred to the fact that a removal notice was issued by the eSafety Commissioner to the respondent, which has not been complied with. The removal notice is, however, not relevant to the application today, which relies upon s 75.

21    I am satisfied prima facie that:

(a)    the respondent was the person who posted the relevant images;

(b)    none of the depicted persons gave consent to the posts; and

(c)    the images fell within the definition outlined in s 15 – they are intimate images by reference to the requirements outlined in that section.

INTERLOCUTORY OR INTERIM INJUNCTIONS

22    The relevant principles regarding the grant of interim or interlocutory injunctions are well-established:

(a)    first, the applicant must make out a prima facie case in the sense that, if the evidence remains as it is, there is a probability that, at the trial of the action, the applicant will be held to be entitled to relief; and

(b)    secondly, the Court must consider whether the inconvenience or injury which the applicant (in this case, the depicted persons) would be likely to suffer if the injunction were refused outweighs, or is outweighed by, the injury which the respondent would suffer if an injunction were granted.

23    These requirements were outlined in Beecham Group Limited v Bristol Laboratories Pty. Limited (1968) 118 CLR 618.

24    “Prima facie” does not mean that the applicant must show that it is more probable than not that, at trial, the applicant will succeed. It is sufficient that the applicant shows a sufficient likelihood of success to justify, in the circumstances, the granting of the injunction pending trial.

25    In this case, as I have indicated, I am satisfied that, if the evidence remains as it is, there is a probability that, at the trial, the eSafety Commissioner will be entitled to relief.

26    The balance of convenience weighs strongly in favour of the interim orders being made.

27    The material is distressing to those who are the depicted people. For example, one of the depicted people, in the complaint, referred to feeling “violated, vulnerable and completely without agency”. This impact will occur for as long as the material remains online. The alleged contraventions of the Act are ongoing. The aim of the injunction is to stop the alleged contraventions and this weighs heavily in favour of granting the injunction.

28    There is a need for an injunction to attempt to secure compliance with the Act in circumstances where, on the evidence, the respondent may return to the Philippines.

29    The eSafety Commissioner has an important public duty, in the context of the eSafety Commissioner’s role under the Act and the purpose of the Act, which is to ensure and promote online safety for Australians. This weighs heavily in favour of granting the injunction.

30    On the other side of the coin, the impact on the respondent is not onerous, nor is it final. The respondent will, within a short period of time, have the opportunity to convince the Court that there is no prima facie contravention or that there is no need for injunctive relief. In that case, if the respondent succeeds, the interim injunction will lift. The interim injunction is for a short time, until 3 November 2023, when the matter will come again before the Court. I will allow liberty to apply to ensure that, if the respondent wishes to bring this matter before the Court earlier, that can occur.

31    The granting of the injunction is not, in my view, futile. It is necessary to enforce the important purposes outlined in the legislation. Regulating the internet to make it safer for Australians is a very important, but difficult task.

32    In the circumstances, the balance of convenience weighs heavily in favour of the grant of the injunction.

33    Because of the fact that the relief sought is on an ex parte basis, I will grant an interim injunction for a short period, allowing the eSafety Commissioner to serve the respondent, who will have the opportunity to defend the claim for interlocutory relief as well as the claims for declaration and pecuniary penalties.

Associate:    

Dated:    26 October 2023