eSafety Commissioner v Rotondo (No 3)

Link copied
Case Copied 21 min read

FEDERAL COURT OF AUSTRALIA

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

File number: QUD 451 of 2023
Judgment of: DERRINGTON J
Date of judgment: 6 December 2023
Date of publication of reasons: 13 December 2023
Catchwords: CONTEMPT OF COURT – civil contempt – penalties –  where respondent acknowledged liability for contempt having disobeyed orders of the Federal Court of Australia – orders previously made for respondent to remove material from, and to refrain from posting material to, the internet in accordance with the Online Safety Act 2021 (Cth) – subsequent co-operation with eSafety Commissioner to cause offending material to be removed – applicable principles regarding the imposition of penalties for contempt
Legislation:

Online Safety Act 2021 (Cth)

Regulatory Powers (Standard Provisions) Act 2014 (Cth)

Federal Court Rules 2011 (Cth)

Cases cited:

Australian Securities and Investments Commission v Michalik (2004) 52 ACSR 115

Australian Securities and Investments Commission v One Tech Media Limited (No 4) [2018] FCA 1533

Clipsal Australia Pty Ltd v ACN 134 468 205 (formerly Clipso Electrical Pty Ltd) (No 5) [2017] FCA 1584

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

eSafety Commissioner v Rotondo [2023] FCA 1296

Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90

Tax Practitioners Board v Hacker (No 4) [2021] FCA 940

Vaysman v Deckers Outdoor Corporation Inc (2011) 276 ALR 596

Zhang v Shi (No 6) (2022) 67 VR 469

Division: General Division
Registry: Queensland
National Practice Area: Commercial and Corporations
Sub-area: Regulator and Consumer Protection
Number of paragraphs: 54
Date of hearing: 6 December 2023
Counsel for the Applicant: Mr M McKechnie
Solicitor for the Applicant: Australian Government Solicitor
Counsel for the Respondent: The Respondent appeared in person

ORDERS

QUD 451 of 2023
BETWEEN:

ESAFETY COMMISSIONER

Applicant

AND:

ANTHONY ROTONDO AKA ANTONIO ROTONDO

Respondent

ORDER MADE BY:

DERRINGTON J

DATE OF ORDER:

6 DECEMBER 2023

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; and

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…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read eSafety Commissioner v Rotondo (No 3) 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 1590
Decision Date

CaseChat Overview and Summary

In the case of eSafety Commissioner v Rotondo (No 3), the Federal Court was called upon to determine the appropriate penalty for Mr. Rotondo's civil contempt, having acknowledged his liability for disobeying court orders under the Online Safety Act 2021. The dispute centred on Mr. Rotondo's posting of intimate images of Australian public figures on his website, MrDeepFakes.com, which were digitally manipulated, or "deepfakes". The Commissioner had issued orders for Mr. Rotondo to remove the images and refrain from posting such content in the future. Mr. Rotondo admitted to the contempt and cooperated with the Commissioner to remove the offending material.

The primary legal issue before the court was the determination of an appropriate penalty for Mr. Rotondo's civil contempt. Factors considered included his admission of guilt, his cooperation in removing the offending material, and the absence of any prior history of contempt. The court noted that while Mr. Rotondo's conduct was in deliberate defiance of the court's orders, his admissions and cooperation had saved time and costs, and helped achieve the purpose of the Act. The court also observed that Mr. Rotondo had not expressed or evinced any remorse, nor did he seek to promote or justify his actions.

The court concluded that Mr. Rotondo's admissions and cooperation were made as soon as reasonably practicable after he was made aware of the contempt application, which warranted some leniency. However, the court emphasised the importance of maintaining the privacy and dignity of the depicted persons. Ultimately, the court imposed fines of $5,000, $10,000, and $10,000 respectively for each of the three charges, and ordered Mr. Rotondo to pay the Commissioner's costs on an indemnity basis.

Orders

Orders of the court

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; and

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.

Background

Background to the litigation

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 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. 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. 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. 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. 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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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 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. 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. 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 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. 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