Federal Court of Australia

eSafety Commissioner v Rotondo (No 3) [2023] FCA 1590

ORDERS

THE COURT ORDERS THAT:

1.    In respect of charge 1 of the statement of charge issued by Justice Rangiah on 27 October 2023, the respondent, Anthony Rotondo, is to pay to the Commonwealth of Australia a fine of $5,000.00.

2.    In respect of charge 2 of the statement of charge issued by Justice Rangiah on 27 October 2023, the respondent, Anthony Rotondo, is to pay to the Commonwealth of Australia a fine of $10,000.00.

3.    In respect of charge 3 of the statement of charge issued by Justice Rangiah on 27 October 2023, the respondent, Anthony Rotondo, is to pay to the Commonwealth of Australia a fine of $10,000.00.

4.    The respondent, Anthony Rotondo, is to pay the applicant’s costs of and incidental to the contempt proceedings on an indemnity basis.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    This is an application pursuant to Div 42.2 of the Federal Court Rules 2011 (Cth) (the Rules) for punishment for contempt of certain orders of this Court. It is brought by the eSafety Commissioner (the Commissioner) against Mr Anthony Rotondo (also known as Mr Antonio Rotondo).

2    The application is brought in the context of a proceeding being prosecuted by the Commissioner against Mr Rotondo for the imposition of civil penalties for alleged breaches of the Online Safety Act 2021 (Cth) (the Act). The Commissioner is empowered to bring such proceedings pursuant to s 162 of the Act, read in conjunction with Pt 4 of the Regulatory Powers (Standard Provisions) Act 2014 (Cth).

3    Mr Rotondo does not contest the Commissioner’s application for contempt, and he has acknowledged his guilt in that respect. He has co-operated with the Commissioner’s officers to remove from the internet the offending material the subject of the orders in respect of which the present contempt proceedings are brought. Therefore, the only remaining issue is the penalty that the Court should impose in the circumstances.

Background

4    On 19 October 2023, the Commissioner commenced civil penalty proceedings against Mr Rotondo for alleged contraventions of ss 75, 80 and 83 of the Act. By s 75(1), a person may be liable to pay a civil penalty where he or she posts, or threatens to post, an “intimate image” of another person on, inter alia, the internet and he or she, or the person depicted in the intimate image, is ordinarily resident in Australia. In broad terms, ss 80 and 83 impose further civil penalties on a person who does not comply with the terms of a notice or direction issued by the Commissioner under the Act requiring them to remove an offending image from the internet or to take specified action directed towards ensuring that they do not contravene s 75 in the future.

5    The Commissioner alleges that Mr Rotondo has contravened each of those provisions, and seeks the imposition of civil penalties for the contraventions pursuant to s 162 of the Act.

6    Whilst there is no need on this application to provide too many details of the alleged contraventions of the Act, it is appropriate to give some background to the matter, as follows.

7    It is alleged that Mr Rotondo posted “intimate images” of several persons ordinarily resident in Australia online, on a website called MrDeepFakes.com. That site aggregates, hosts and displays what are known as “deepfake” videos and images. Deepfakes are digitally manipulated forms of visual media in which one person’s likeness is replaced convincingly with that of another so as to depict circumstances that never existed. Unfortunately, the material before the Court suggests that deepfakes are not especially difficult to create. Programs presently available on the internet enable the face of one person to be fixed to the body of another person with considerable precision to create a false or misleading image, the synthetic nature of which is difficult to detect. In the present case, the images allegedly created and posted by Mr Rotondo depict persons in intimate situations. The persons in question (hereinafter, the “depicted persons”) are Australian public figures who did not consent to the creation of the deepfakes.

8    After investigating the origin of several images that had been posted on MrDeepFakes.com, which portrayed certain of the depicted persons, the Commissioner issued to Mr Rotondo on 5 May 2023 a removal notice under s 78 of the Act and a remedial direction under s 83 of the Act, requiring him (inter alia) to:

(a)    remove certain material that he had uploaded to MrDeepFakes.com;

(b)    recover and delete all intimate images of the depicted persons in question; and

(c)    refrain from any further posting of such intimate images.

9    On 5 May 2023, the staff of the Commissioner received an email from Mr Rotondo in reply to the removal notice and remedial direction. In that email, Mr Rotondo stated:

I am not a resident of Australia. The removal notice means nothing to me. Get an arrest warrant if you think you are right.

10    Needless to say, Mr Rotondo did not remove the offending material from the internet.

11    Subsequently, email correspondence was exchanged between the Commissioner’s office and Mr Rotondo — including when, on 23 May 2023, the Commissioner issued two infringement notices to Mr Rotondo for his non-compliance with the removal notice and the remedial direction. In the course of these exchanges, Mr Rotondo did not remove the offending material from the internet.

12    Some time later, the Commissioner was informed by the Australian Federal Police that Mr Rotondo had travelled to Australia from the Philippines (where, it seems, he ordinarily resides), having landed in Brisbane on 10 October 2023. It thereafter became known that he was located on the Gold Coast.

13    The Commissioner commenced the present proceedings on 19 October 2023, seeking the imposition of civil penalties against Mr Rotondo for the alleged contraventions of ss 75, 80 and 83 of the Act.

14    The Commissioner also sought in the originating application by which these proceedings were commenced ex parte interlocutory relief requiring Mr Rotondo to, amongst other things, remove the images that he had posted to MrDeepFakes.com.

15    On 20 October 2023, Thomas J granted that interlocutory injunctive relief pursuant to s 122(1) of the Regulatory Powers (Standard Provisions) Act 2014 (Cth). Relevantly, the orders made by his Honour on that date included the following:

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).

…

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.

16    The depicted persons are listed in a schedule to the orders of Thomas J. Their names are suppressed from publication to protect their privacy and to prevent any further humiliation or hurt that their identification in connection with these proceedings might cause them.

17    The evidence establishes that the orders of Thomas J (including the confidential schedule), the originating application and the affidavit of Mr Luke Boon affirmed on 19 October 2023 were served on Mr Rotondo on 25 October 2023 by their being sent to a number of email addresses that had been identified as having some association with him.

18    On 26 October 2023, staff of the Commissioner confirmed that the intimate images that were the subject of the orders of Thomas J remained on MrDeepFakes.com.

19    On the same day, the Commissioner’s staff received an email from Mr Rotondo in reply to the email by which the orders of Thomas J and other documents has been served. Mr Rotondo’s reply was carbon copied to 49 other email addresses, some of which appeared to belong to media outlets or persons associated with media outlets. Importantly, Mr Rotondo attached to his reply the material that had been served upon him, including the documents that had been before Thomas J on the Commissioner’s ex parte application for injunctive relief, the orders made by his Honour to determine that application, and the confidential schedule to those orders.

20    That material was the subject of Order 6 made by Thomas J, as set out above, which required that the material not be published. It follows that the dissemination by Mr Rotondo of the material by email was a clear contravention of Order 6. As has already been mentioned, Mr Rotondo has acknowledged his contravention of that order.

21    The email sent by Mr Rotondo to the Commissioner and to the 49 other recipients also included deepfake images of other individuals not the subject of these proceedings, including at least one person ordinarily resident in Australia. His inclusion of those additional images contravened Order 2 made by Thomas J, and Mr Rotondo has now admitted that to have been the case.

22    Mr Rotondo did not remove the intimate images referred to in Order 1 made by Thomas J. By this omission, he contravened Order 1. Again, he has admitted this contravention.

23    On 27 October 2023, the Commissioner filed an interlocutory application, seeking a finding that Mr Rotondo had committed a contempt of this Court, as well as the imposition of penalties for the contempt and costs on an indemnity basis. On the same day, Rangiah J signed a statement of charge and ordered that a warrant be issued for Mr Rotondo’s arrest and detention.

24    The statement of charge was in the following terms:

To the Respondent Anthony Rotondo (also known as Antonio Rotondo)

You are charged with contempt of court in that:

Charge

1. In breach of the order at paragraph 1 of Thomas J dated 20 October 2023 (20 October 2023 Orders), you failed to take all reasonable steps to remove or have removed from the website mrdeepfakes.com, intimate images of 6 individuals identified in the confidential schedule to the 20 October 2023 Orders.

Particulars:

On 25 October 2023, at 2.59pm you were served, by email, with a copy of the 20 October 2023 Orders. On 26 October 2023, at 10.50am AEST, you confirmed receipt of the 20 October 2023 orders by sending an email to eSafety and 49 others attaching the 20 October 2023 orders. The images the subject of paragraph 1 of the 20 October 2023 Orders remain on the website mrdeepfakes.com.

2. On 26 October 2023, at 10.50am AEST, in breach of the order at paragraph 2 of the 20 October 2023 Orders you posted an intimate image by emailing an intimate image of an Australian resident to eSafety and 49 others.

Particulars:

At 10:50 am AEST on 26 October 2023, Anthony Rotondo sent an email from email address [omitted] to email addresses for eSafety and 49 others, including 16 News, 4 News Australia, 6 News Australia, 7News. That email attached an intimate image of a person who is ordinarily resident in Australia and such email was sent without the consent of said person.

3.     On 26 October 2023, in breach of the order at paragraph 6 of the 20 October 2023 Orders you published the Orders, schedule to the Orders and affidavit of Luke Boon affirmed 19 October 2023 by sending an email attaching a copy of each of those documents to eSafety and 49 others.

Particulars:

At 10:50 am AEST on 26 October 2023, Anthony Rotondo sent an email from email address [omitted] to email addresses for eSafety and 49 others, including 16 News, 4 News Australia, 6 News Australia, 7News. That email attached a copy of the Orders, schedule to the Orders and affidavit of Luke Boon affirmed 19 October 2023 and Originating Application.

25    Mr Rotondo was ultimately arrested and detained pursuant to State charges, which were unrelated to his contempt of this Court or the contraventions of the Act alleged in these proceedings.

26    At the hearing of the Commissioner’s interlocutory application as to contempt, the charges and their particulars were read to Mr Rotondo. He admitted his contempt in response to each charge.

The relevant law

27    The principles to be applied when imposing penalties for contempt are set out in the decision of the Full Court in Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90, 131 – 138 [95] – [118] (Kazal). There is no need for them to be restated here in full. However, some particular points bear emphasising.

28    The primary purpose of contempt proceedings is to protect the administration of justice, as was recognised in Kazal at 132 [97], as follows:

The plurality in Boral observed at 388 [41], endorsing the statement of principle by Hayne J in Re Colina; Ex parte Tourney [1999] HCA 57; 200 CLR 386 at 429 [12], that the “cardinal feature of the power to punish for contempt” was as an exercise of judicial power to “protect the due administration of justice”. Viewed in that way, contempt proceedings are essentially protective in nature as to the judicial function and the role of the courts, even if they also serve to vindicate private interests and rights. Contempt proceedings are therefore to be viewed as essential in facilitating courts being able to function properly. That includes being, and being seen to be, effectual in adjudicating upon and resolving disputes, and in particular making orders that will ordinarily be obeyed. This means that individual contempt cases have an importance transcending the instant case by supporting and enhancing the integrity of judicial proceedings, both in respect of orders made, and more generally. That view of contempt proceedings can be seen to permeate longstanding sentencing authority in this area.

29    In Australian Securities and Investments Commission v One Tech Media Limited (No 4) [2018] FCA 1533, Moshinsky J referred at [13] to a number of authorities setting out the legal principles applicable to the determination of an appropriate penalty for contempt, before quoting with apparent approval a list of “relevant factors” compiled by Palmer J in Australian Securities and Investments Commission v Michalik (2004) 52 ACSR 115 at 123 [29]. Those factors are:

(a)    the seriousness of the contempt proved;

(b)    whether the contemnor was aware of the consequences to himself of what he proposed to do;

(c)    the actual or potential consequences of the contempt on the proceedings in which the contempt was committed;

(d)    whether the contempt was committed in the context of a proceeding alleging crime or conduct seriously prejudicial to the public interest;

(e)    the reason or motive for the contempt;

(f)    whether the contemnor has received, or sought to receive, a benefit or gain from the contempt;

(g)    whether there has been any expression of genuine contrition by the contemnor;

(h)    the character and antecedents of the contemnor;

(i)    what punishment is required to deter the contemnor and others of like mind from similar disobedience to the orders of the court; and

(j)    what punishment is required to express the court’s denunciation of the contempt.

30    Despite the Court’s wide discretion when it comes to the imposition of punishment for contempt, a sentence of imprisonment has been seen as a “last resort”: Vaysman v Deckers Outdoor Corporation Inc (2011) 276 ALR 596, 638 – 639 [168] – [171]; Kazal at 133 [103]; Zhang v Shi (No 6) (2022) 67 VR 469, 476 [29]. Whilst that is so, it may be that the disregard of court orders becomes so frequent or contumacious as to necessitate that harsher penalties be imposed in order to ensure that justice can duly be administered.

31    Caution must also be exercised when considering the penalties imposed in other cases of contempt. Civil contempt is comparatively rare, meaning that the available authorities do not provide a sufficient number of data points from which to construct an analytical framework that the Court might use to measure and compare penalties or sentences, as exists in the criminal context: Kazal at 137 – 138 [118]. See also Tax Practitioners Board v Hacker (No 4) [2021] FCA 940 [56] – [58] (Hacker). In addition, the circumstances in which contempt occurs are infinitely varied, such that establishing a relevant correlation between cases will often be difficult.

32    It is well established that the applicant’s role in contempt proceedings is to assist the Court as to the relevant principles and the type of penalty that might be appropriate. However, it should refrain from advocating directly for any particular duration or range of sentence to be imposed: Kazal at 145 [159]; Hacker [26].

Establishing the contravention

33    The facts set out earlier in these reasons are uncontentious. As has been acknowledged already, Mr Rotondo has admitted that he failed to comply with the orders of Thomas J in the manner described in the three charges. I find that the charges have been established and that Mr Rotondo has committed a contempt of this Court on each of the occasions specified in the statement of charge.

Factors relevant to the assessment of the appropriate penalty

34    It is proper, now, to step through certain of the factors recognised in the authorities as being relevant to the determination of the appropriate penalty for contempt.

The seriousness of the admitted contempt

35    It is beyond doubt that the contempt in this case is objectively serious.

36    In the first place, orders were made by Thomas J on the application of the Commissioner for Mr Rotondo to take reasonable steps to remove or have removed certain intimate images from MrDeepFakes.com and to refrain from posting any further such images on any social media service, relevant electronic service or designated internet service. In contumacious disregard of his Honour’s orders, Mr Rotondo neglected or refused to remove the offending images and, instead, posted additional intimate images of other people directly to the Commissioner and 49 other recipients, including media outlets.

37    Mr Rotondo’s conduct contravened Orders 1 and 2 made by Thomas J in a manner that was deliberate. That conduct exhibited an obdurate resistance to the enforcement of the Act.

38    Additionally, in contravention of Order 6 made by Thomas J, Mr Rotondo published the orders, the confidential schedule to the orders and the affidavit of Mr Boon by attaching copies of those documents to the same email that he sent to the Commissioner and 49 other recipients. It is relevant to note that the reason for the making of Order 6 was to maintain confidentiality in the current proceedings so as to ensure that they do not cause or otherwise lead to any wider publication of the offending material: eSafety Commissioner v Rotondo [2023] FCA 1296 [17].

39    Mr Rotondo’s conduct in disseminating the orders and other documents undermined the Court’s attempt to maintain the privacy and dignity of the depicted persons. Indeed, this conduct can be viewed as a deliberate defiance of the Court’s orders. By engaging in that conduct, Mr Rotondo effectively defeated the careful work of the Commissioner’s officers to suppress the identities of the depicted persons in these proceedings to date.

Admission and co-operation

40    Mr Rotondo has admitted his contempt and has not contested the charges brought against him. This justifies some substantial reduction in the punishment that would otherwise be imposed. Moreover, as Mr McKechnie of Counsel submitted on behalf of the Commissioner, the importance of removing the offending material from the internet cannot be overstated. The fact that Mr Rotondo voluntarily provided passwords and other necessary information to allow the Commissioner’s officers to remove that material must be accorded significant weight. Those steps may demonstrate some degree of contrition on his part.

41    However, it is concerning that Mr Rotondo did not otherwise express or evince any remorse in connection with his conduct. That having been said, he also did not seek to promote what he had done or to justify it. Overall, I accept the Commissioner’s submission that Mr Rotondo’s admissions and his co-operative conduct did result in a saving of time and costs. As best that he now can, while he remains detained on the aforementioned State charges, Mr Rotondo has purged his contempt by consenting to the Commissioner’s staff accessing his online accounts and removing the offending material from the internet. This has assisted the Commissioner to achieve and further the purpose of the Act.

42    The Commissioner submitted that the Court should find that Mr Rotondo’s admissions and co-operation came as soon as reasonably practicable after he was made aware of the contempt application. That generous submission should be accepted, and it assists in relieving the severity of the punishment that might otherwise have been imposed.

Mr Rotondo’s motives, character and antecedents

43    Some significant difficulty attends this case insofar as there remains a paucity of information about Mr Rotondo’s personal circumstances, which might be relevant to the assessment of the appropriate penalty. During the course of the hearing, he was offered an opportunity to make submissions to the Court about such matters on multiple occasions, but he chose not to do so. This decision is, of course, not to be counted against him. However, it means that he has not made reference to any matter personal to him that might be taken by the Court to reduce the penalty properly to be imposed.

44    Ultimately, there is no evidence of any history of Mr Rotondo not complying with Court orders. The Court must therefore proceed on the basis that this is the first occasion on which Mr Rotondo has been found to be in contempt, and no additional penalty should be imposed on the basis that he is a recidivist offender.

Comparable cases

45    There are a number of comparable cases in which penalties have been imposed for contempt associated with non-compliance with orders of the Court. They are:

(a)    Cooper, in the matter of Chopsonion Pty Ltd (Receivers and Managers Appointed) v Chopsonion Pty Ltd (Receivers and Managers Appointed) (No 2) [2018] FCA 1504 (Chopsonion Pty Ltd), where the Court imposed a fine of $15,000 and ordered the third defendant to pay the plaintiffs’ costs on an indemnity basis by reason of his failure to make books and records available to the plaintiffs;

(b)    Clipsal Australia Pty Ltd v ACN 134 468 205 (formerly Clipso Electrical Pty Ltd) (No 5) [2017] FCA 1584, where the Court sentenced the fourth respondent to a suspended term of imprisonment for three months (conditional upon compliance with remaining orders) and imposed a fine of $40,000 for his failure to comply with an order that the respondents in the matter deliver to the first applicant all goods and promotional material bearing a particular, allegedly infringing, trademark; and

(c)    Australian Securities and Investments Commission v One Tech Media Limited (No 4) [2018] FCA 1533, where the Court imposed fines of $40,000, $10,000 and $10,000, respectively, on three defendants who had each committed multiple instances of contempt by failing to comply with orders to preserve funds, which had the effect of depleting frozen accounts.

46    As noted above, these cases all concerned instances of contempt constituted by a failure to comply with orders of the Court. Each also involved admissions made with respect to the contempt. There is accordingly some basic analogy between those cases and the present.

47    As indicated previously, comparable cases of this nature are of somewhat limited utility in the civil contempt context. That having been said, they do provide some very general indication as to what might deter and sufficiently denounce non-compliance with Court orders in this matter.

The appropriate penalty

48    The circumstances of the present case pose some difficulty in the assessment of the appropriate penalty.

49    First, the contempt was deliberate and contumacious. Indeed, the conduct constituting the contempt had the effect of undermining the protection of the depicted persons that the Court had sought specifically to achieve. Necessarily, these aspects of the case warrant the imposition of a significant penalty. In some instances, it might justify imprisonment. However, the Commissioner has identified several ameliorating circumstances — including Mr Rotondo’s conduct in admitting the contempt and his general co-operation. Those circumstances warrant some leniency. However, they are perhaps less powerful mitigating factors than they could otherwise have been, given that Mr Rotondo’s co-operation has only been forthcoming after he has been arrested and detained in relation to other State charges. The history of the matter suggests that, were he still at liberty and perhaps in another country, he would not have been so accommodating.

50    I accept the submission of the Commissioner that the instances of contempt the subject of the second and third charges are more serious. The Court’s orders were deliberately flouted and the important purpose of those orders, being to prevent further dissemination of the identities of the depicted persons and the offending material, was substantially undermined. I suspect that it was only because many of the media outlets that received Mr Rotondo’s email acted professionally and responsibly that widespread dissemination did not occur. The propriety of the individuals and the media outlets in question should be acknowledged.

51    In assessing the appropriate penalties for the three separate instances of contempt, I also take into account the totality principle and have sought, with the material available, to have regard to the overall burden that will be imposed on Mr Rotondo.

52    On the first charge, I impose a penalty of $5,000. On each of the second and third charges, I impose a penalty of $10,000, given their greater severity.

Costs

53    In the Commissioner’s written submissions, costs are sought on an indemnity basis. That award of costs is warranted because the present contempt application was wholly unnecessary, except to respond to Mr Rotondo’s non-compliance with the orders made by Thomas J, for which there is no justification. It follows that he ought to pay the Commissioner’s costs of and incidental to this contempt application on an indemnity basis: see Chopsonion Pty Ltd [3]; Kazal at 153 – 155 [192] – [198].

Orders

54    Having found that Mr Rotondo has breached the orders of Thomas J made on 20 October 2023 in the manner specified in the statement of charge issued by Rangiah J on 27 October 2023, the formal orders of the Court are as follows:

(1)    In respect of charge 1 of the statement of charge issued by Rangiah J on 27 October 2023, the respondent, Anthony Rotondo, is to pay the Commonwealth of Australia a fine of $5,000.

(2)    In respect of charge 2 of the statement of charge issued by Rangiah J on 27 October 2023, the respondent, Anthony Rotondo, is to pay the Commonwealth of Australia a fine of $10,000.

(3)    In respect of charge 3 of the statement of charge issued by Rangiah J on 27 October 2023, the respondent, Anthony Rotondo, is to pay the Commonwealth of Australia a fine of $10,000.

(4)    The respondent, Anthony Rotondo, is to pay the applicant’s costs of and incidental to the contempt proceedings on an indemnity basis.

Associate:    

Dated:    13 December 2023