eSafety Commissioner v Rotondo - [2023] FCA 1296

FEDERAL COURT OF AUSTRALIA
eSafety Commissioner v Rotondo [2023] FCA 1296

File number: QUD 451 of 2023

Judgment of: THOMAS J

Date of judgment: 20 October 2023

Catchwords: ONLINE SAFETY – application brought ex parte seeking an interim injunction for alleged contravention of s 75 of the Online Safety Act 2021 (Cth) – posting of intimate images without consent – prima facie satisfied that the respondent posted the images which were of an intimate nature not by consent – interim injunction granted

Legislation:
Online Safety Act 2021 (Cth)

Regulatory Powers (Standard Provisions) Act 2014 (Cth)

Cases cited: Beecham Group Limited v Bristol Laboratories Pty. Limited (1968) 118 CLR 618

Division: General Division

Registry: Queensland

National Practice Area: Federal Crime and Related Proceedings

Number of paragraphs: 33

Date of hearing: 20 October 2023

Counsel for the Applicant: Mr M McKechnie

Solicitor for the Applicant: Australian Government Solicitor

ORDERS

QUD 451 of 2023

BETWEEN:
ESAFETY COMMISSIONER

Applicant

AND:
ANTHONY ROTONDO AKA ANTONIO ROTONDO

Respondent

ORDER MADE BY:

THOMAS J

DATE OF ORDER:

20 OCTOBER 2023

PENAL NOTICE

TO: ANTHONY ROTONDO AKA ANTONIO ROTONDO

IF YOU (BEING THE PERSON BOUND BY THIS ORDER):

(A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR

(B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO,

YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read eSafety Commissioner v Rotondo and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] FCA 1296
Decision Date: 20 October 2023

CaseChat Overview and Summary

The eSafety Commissioner filed an ex parte application against Rotondo for an interim injunction, alleging that he contravened section 75 of the Online Safety Act 2021 by posting intimate images without consent. The eSafety Commissioner, acting on complaints from multiple individuals, investigated and identified Rotondo as the person who posted the intimate images. The application was heard on an ex parte basis due to Rotondo's presence in Australia, as detailed in the affidavit of Mr Luke Boon, the Acting Executive Manager of the Investigations Branch of the Office of eSafety Commissioner.

The legal issues the court needed to decide were whether Rotondo had indeed posted the intimate images without consent and whether the eSafety Commissioner had established a prima facie case for an interim injunction. The court considered the affidavits submitted, including a confidential affidavit that was later returned to the eSafety Commissioner. The court was satisfied prima facie that Rotondo posted the intimate images without consent, as none of the depicted persons had given permission for the images to be published.

The court granted the interim injunction, acknowledging that the eSafety Commissioner had a prima facie case for relief and that the injury to the depicted persons if the injunction were not granted would outweigh any injury to Rotondo if it were granted. The court also considered the importance of open justice, but found that the redactions in the confidential affidavit were minor and necessary to protect the interests of the depicted persons and the objectives of the Act. The court's decision was based on the balance of convenience and the likelihood of success on the merits of the case.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 The eSafety Commissioner read the originating application, an open affidavit of Mr Boon and the eSafety Commissioner’s submissions. 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. The eSafety Commissioner received complaints from a number of people and undertook investigations following receipt of those complaints. In the complaint documents, the depicted persons each say that no consent was given to the posting of the images. 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. In any event, the redactions are minor and a reasonable departure from the otherwise important principle of open justice. 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. 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. 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 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.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	QUD 451 of 2023
Judgment of:	THOMAS J
Date of judgment:	20 October 2023
Catchwords:	ONLINE SAFETY – application brought ex parte seeking an interim injunction for alleged contravention of s 75 of the Online Safety Act 2021 (Cth) – posting of intimate images without consent – prima facie satisfied that the respondent posted the images which were of an intimate nature not by consent – interim injunction granted
Legislation:	Online Safety Act 2021 (Cth) Regulatory Powers (Standard Provisions) Act 2014 (Cth)
Cases cited:	Beecham Group Limited v Bristol Laboratories Pty. Limited (1968) 118 CLR 618
Division:	General Division
Registry:	Queensland
National Practice Area:	Federal Crime and Related Proceedings
Number of paragraphs:	33
Date of hearing:	20 October 2023
Counsel for the Applicant:	Mr M McKechnie
Solicitor for the Applicant:	Australian Government Solicitor

ORDER MADE BY:	THOMAS J
DATE OF ORDER:	20 OCTOBER 2023