eSafety Commissioner v Rotondo (No 4)

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FEDERAL COURT OF AUSTRALIA

eSafety Commissioner v Rotondo (No 4) [2025] FCA 1191

File number: QUD 451 of 2023
Judgment of: LONGBOTTOM J
Date of judgment: 26 September 2025
Catchwords: COMMUNICATIONS LAW –Where the applicant seeks declarations that the respondent contravened the Online Safety Act 2021 – where the respondent admits to contravening the Online Safety Act 2021 – declaration made.
COMMUNICATIONS LAW – Where the applicant seeks pecuniary penalty – where the respondent admits to contravening the Online Safety Act 2021 – where there is presence of both aggravating and mitigating factors – whether the conduct should be regarded as a single course of conduct or a series of contraventions of the same or similar character – penalty imposed
Legislation:

Acts Interpretation Act 1901 (Cth), ss 2B, 15AB(1)(a)

Crimes Act 1914 (Cth), s 4 and s 4AA(3)

Crimes Amendment (Penalty Unit) Act 2022 (Cth), s 2,

Sch 1, Item 1

Evidence Act 1995 (Cth), ss 79, 140, 191

Federal Court of Australia Act 1976 (Cth), ss 21, 43

Online Safety Act 2021 (Cth), ss 3, 14(1), 14(2), 14(3), 15(2), 15(3), 16, 32(1), 25, 26, 27, 28, 32, 33(3), 35(1), 35(2), 35(3), 75, 75(1), 78, 78(1), 80, 83, 83(2), 83(3), 162, Part 6

Regulatory Powers (Standard Provisions) Act 2014 (Cth), ss 80, 82(3), 82(5), 82(6), 83(1), 3(3), 85, 85(1), 87, 88

Explanatory Memorandum to the Online Safety Bill 2021 (Cth)

Notice of Indexation of the Penalty Unit Amount (Cth) (19 May 2020)

Criminal Code 1899 (Qld)
Cases cited:

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; (2017) 254 FCR 68

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) [2019] FCAFC 49

Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450

Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405

Australian Competition and Consumer Commission v Fisher & Paykel Customer Services Pty Ltd [2014] FCA 1393

Australian Competition and Consumer Commission v Hillside (Australia New Media) Pty Ltd trading as Bet365 (No 2) [2016] FCA 698

Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56; (2012) 201 FCR 378

Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25

Australian Competition and Consumer Commission v We Buy Houses Pty Ltd [2017] FCA 915

Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; (2018) 262 FCR 243

Australian Securities and Investments Commission v AMP Financial Planning Pty Ltd (No 2) [2020] FCA 69; (2020) 377 ALR 55

Australian Securities and Investments Commission v BHF Solutions Pty Ltd [2022] FCAFC 108; (2022) 293 FCR 330

Australian Securities and Investments Commission v Southcorp Ltd (No 2) [2003] FCA 1369; (2003) 130 FCR 406

Australian Securities and Investments Commission v Westpac Banking Corporation (No 3) [2018] FCA 1701; (2018) 131 ACSR 585

BMW Australia Ltd…

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Details
Case
[2025] FCA 1191
Decision Date

CaseChat Overview and Summary

In eSafety Commissioner v Rotondo (No 4), the eSafety Commissioner sought declarations and pecuniary penalties against the respondent, Rotondo, for contraventions of the Online Safety Act 2021 (Cth). Rotondo admitted liability and the court appointed an amicus curiae to assist. The court considered the agreed facts, supported by affidavits and expert reports, and ruled parts of the expert report inadmissible. The court was required to determine whether to grant declaratory relief and the appropriate pecuniary penalties, considering the respondent's admissions and both aggravating and mitigating factors.

The court exercised its wide discretion to grant declaratory relief, finding it appropriate to record disapproval of the contravening conduct, vindicate the regulator's claim, assist in carrying out duties, and deter others. The court was satisfied that the questions were real and not hypothetical, the applicant had a sufficient real interest, and there was a proper contradictor. The court imposed pecuniary penalties, considering the presence of both aggravating and mitigating factors, and determined that the conduct should be regarded as a single course of conduct.

The court made declarations that Rotondo contravened sections 75, 80 and 83 of the Act and ordered him to pay pecuniary penalties of $343,500. The court also ordered Rotondo to pay the Commissioner's costs of and incidental to the proceeding. The court's decision highlights the importance of the eSafety Commissioner's role in enforcing the Online Safety Act and the court's discretion in imposing penalties that reflect the seriousness of the contraventions.

Orders

Orders of the court

15. The respondent pay to the Commonwealth of Australia pursuant to s 162 of the Act, the following pecuniary penalties:

(a) in respect of the contravention of s 75 of the Act the subject of Declaration 1 above, $15,000;

(b) in respect of the contravention of s 75 of the Act the subject of Declaration 2 above, $15,000;

(c) in respect of the contravention of s 75 of the Act the subject of Declaration 3 above, $15,000;

(d) in respect of the contravention of s 75 of the Act the subject of Declaration 4 above, $15,000;

(e) in respect of the contravention of s 75 of the Act the subject of Declaration 5 above, $15,000;

(f) in respect of the contravention of s 75 of the Act the subject of Declaration 6 above, $18,500;

(g) in respect of the contravention of s 75 of the Act the subject of Declaration 7 above, $35,000;

(h) in respect of the contravention of s 75 of the Act the subject of Declaration 8 above, $35,000;

(i) in respect of the contravention of s 75 of the Act the subject of Declaration 9 above, $35,000;

(j) in respect of the contravention of s 75 of the Act the subject of Declaration 10 above, $35,000;

(k) in respect of the contravention of s 75 of the Act the subject of Declaration 11 above, $35,000; and

(l) in respect of the contravention of s 75 of the Act the subject of Declaration 12 above, $35,000.

16. The respondent pay to the Commonwealth of Australia pursuant to s 162 of the Act, a pecuniary penalty of $20,000 in respect of the contraventions of s 80 of the Act the subject of Declaration 13 above.

17. The respondent pay to the Commonwealth of Australia pursuant to s 162 of the Act, a pecuniary penalty of $20,000 in respect of the contraventions of s 83(3) of the Act the subject of Declaration 14 above.

18. The respondent pay the applicant’s costs of and incidental to the proceeding to be assessed on a party and party basis.

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

Background

Background to the litigation

The respondent is not legally represented, although attempts were made to secure him pro-bono legal assistance. He has admitted liability in a statement of agreed facts and admissions made pursuant to s 191 of the Evidence Act 1995 (Cth) filed 28 January 2025. Against that background, and the novelty of the proceeding, on 11 April 2025, orders were made for the appointment of an amicus curiae: cf, Roadshow Films Pty Ltd v iiNet Ltd [2011] HCA 54; (2011) 248 CLR 37 at [3] to [4] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ); and Wilson v Manna Hill Mining Co Pty Ltd [2004] FCA 1663; (2004) 51 ACSR 404 at [87] (Lander J). The amicus curiae filed an outline of submissions but was not able to appear at the hearing. For the reasons set out below, I will grant declaratory relief as sought by the Commissioner and make civil penalty orders that the respondent pay the Commonwealth of Australia pecuniary penalties totalling $343,500. FACTUAL OVERVIEW The agreed facts and admissions were filed following a mediation on 19 September 2024. The agreed facts are supported by the following affidavits upon which the Commissioner relied at the hearing:(1)The Affidavit of Luke Boon filed 20 October 2023. Mr Boon is the acting Executive Manager of the Investigations Branch of the Office of the Commissioner. He is a delegate of the Commissioner for the purposes of conducting investigations and exercising regulatory powers under the Act. Mr Boon had oversight of the investigation into complaints of non-consensual sharing of intimate images by members of the public that led to the commencement of these proceedings. (2)The Affidavit of Plainclothes Senior Constable Michael McLaughlin filed 17 November 2023. Senior Constable McLaughlin works in the Brisbane City Child Protection and Investigation Unit of the Queensland Police Service. He is the investigating officer in respect of charges against the respondent under the Criminal Code 1899 (Qld). Having regard to the affidavit material, I am satisfied that the agreed facts are to be accepted as true: Evidence Act, s 191 and Australian Securities and Investments Commission v BHF Solutions Pty Ltd [2022] FCAFC 108; (2022) 293 FCR 330 at [34] (O’Bryan J, with whom Besanko and Lee JJ agreed). The Commissioner also relied on the expert report of Report of Professor Clare McGlynn KC filed 28 January 2025 (McGlynn Report). Professor McGlynn is a Professor of Law at Durham University in the United Kingdom. She has over 30 years’ experience of research and policy work regarding violence against women and girls. Professor McGlynn was an international collaborator on the largest study to date of legal and policy responses to image-based abuse involving interviews and survey respondents across the United Kingdom, Australia and New Zealand and funded by the Australian Research Council. At the hearing, I ruled parts of the McGlynn Report dealing with individual psychosocial harm inadmissible having regard to the Commissioner’s concession that Professor McGlynn did not have specialised knowledge in that field: Evidence Act, s 79.

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

The Court may not make a civil penalty order against a person for contravention of a civil penalty provision if the person has been convicted of an offence constituted by conduct that is the same, or substantially the same, as the conduct constituting the contravention: Regulatory Powers Act, s 88. The pecuniary penalty must not be more than that specified for the civil penalty provision: Regulatory Powers Act, s 82(5)(b). A civil penalty under the Act is enforceable under Pt 4 of the Regulatory Powers Act: Act, s 162.DECLARATIONS The Commissioner seeks declarations that the respondent has contravened ss 75, 80 and 83 of the Act. The respondent has made the following admissions with respect to those contraventions:34.[The respondent] admits that between 15 November 2022 and 27 May 2023, by engaging in the conduct set out in paragraphs 7 to 17 above, he contravened s 75 of the OS Act on 12 occasions by posting intimate images on [the named website] on:34.1. 15 November 2022 in relation to DP1 Image;34.2. 24 November 2022 in relation to DP2 Image;34.3. 5 December 2022 in relation to DP3 Image 1;34.4. 26 December 2022 in relation to DP5 Image;34.5. 27 December 2022 in relation to DP3 Image 2;34.6. 7 March 2023 in relation to DP3 Image 3;34.7. 7 May 2023 in relation to DP4 Image 1;34.8. 9 May 2023 in relation to DP4 Image 2;34.9. 16 May 2023 in relation to DP6 Image 1;34.10. 19 May 2023 in relation to DP6 Image 2;34.11. 19 May 2023 in relation to DP6 Image 3;34.12. 27 May 2023 in relation to DP6 Image 4.35.[The respondent] admits that between 6 May 2023 and 27 October 2023, he contravened s 83 of the OS Act (sic) by not complying with a requirement under a removal notice given under s 78 of the Act to the extent that he was capable of doing so.36.[The respondent] admits that between 6 May 2023 and 27 October 2023 he contravened s 83(3) of the OS Act by not complying with a direction given under s 83(2) of the OS Act.Power and discretion The Court has a wide discretionary power to make declarations under s 21 of the Federal Court of Australia Act 1976 (Cth): Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 at 437 to 438 (Gibbs J). Declarations relating to contraventions of legislative provisions are likely to be appropriate where they serve to record the Court’s disapproval of the contravening conduct, vindicate the regulator’s claim that the respondent contravened the provisions, assist the regulator to carry out its duties and deter other persons from contravening the provisions: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; (2017) 254 FCR 68 at [93] (Dowsett, Greenwood and Wigney JJ). Before granting declaratory relief, the Court should be satisfied that the question is real, not hypothetical or theoretical, that the applicant has a sufficient real interest in raising the issue and that there is a proper contradictor: Forster at 437 to 438; see also, Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5; (2022) 276 CLR 519 at [32] to [34] (Kiefel CJ, Keane and Gordon JJ).