Bills Digest no. 74, 2017–18
PDF version [313KB]
Monica Biddington
Law and Bills Digest Section
7 February 2018
Contents
Purpose of the Bill
Structure of the Bill
Background
Current Commonwealth legislation
State and territory legislation
Overseas jurisdictions
Gaps in legislative coverage
Consultation process on possible
legislative change
Committee consideration
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Key issues and provisions
Operation of the Complaints System
Objection Notice Scheme
Removal Notice
Compliance with removal notice
Remedial direction
Infringement notices for prescribed
provisions
Civil penalty provisions
Other provisions
Exempt post
Good faith provision
Concluding comments
Date introduced: 6 December 2017
House: Senate
Portfolio: Communications
and the Arts
Commencement: The day
after Royal Assent
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the Federal
Register of Legislation website.
All hyperlinks in this Bills Digest are correct as at
February 2018.
Purpose of the Bill
The purpose of the Enhancing Online Safety (Non-consensual
Sharing of Intimate Images) Bill 2017 (the Bill) is to amend the Enhancing Online
Safety Act 2015 (Online Safety Act) and the Broadcasting
Services Act 1992 (BSA) to establish a complaints and
objections system for the sharing of intimate images without the consent of the
person depicted in those images. To achieve this purpose, the Bill will:
-
prohibit the posting, or a threat to post, of an intimate image
without consent on a social media service, relevant electronic service, or a
designated internet service (item 26, proposed section 44B of the Online
Safety Act)
-
establish a complaints and objection system in relation to the
non-consensual sharing of intimate images to be administered by the eSafety
Commissioner (the Commissioner) (item 24, proposed sections 19A and 19B)
-
provide the Commissioner with powers to issue a removal notice
requiring end-users, hosting service providers, or providers of a social media
service, relevant electronic service or designated internet service, to remove
an intimate image from a service (item 26, proposed sections 44D, 44E and
44F)
-
provide the Commissioner with the power to give a person a
remedial direction, directed towards ensuring the person does not contravene
the prohibition on the non-consensual sharing of intimate images (item 26,
proposed section 44K)
-
establish a civil penalty regime giving the Commissioner the
discretion to take enforcement action under various Parts of the Regulatory Powers
(Standard Provisions) Act 2014 (the Regulatory Powers Act) if
there has been a contravention of the prohibition on the non-consensual sharing
of an intimate image or a remedial direction, or a failure to comply with a
removal notice and
-
allow the Commissioner to seek a civil penalty order, issue an
infringement notice, obtain an injunction or enforce an undertaking under the
Regulatory Powers Act, or issue a formal warning under the Online Safety
Act for contravention of the civil penalty provisions.
Structure of the Bill
The Bill is presented in one Schedule with one item making
a consequential amendment to the BSA (item 1) and the remaining
45 items making amendments to the Online Safety Act, including new
definitions in section 4 (items 4-11).
Background
There are existing criminal offences of stalking, harassing
and assault in all state and territory legislation. The majority of Australian
states and territories have recently introduced legislation that specifically
targets the conduct known as revenge porn, that is, the sharing of intimate
images online without the consent of the person depicted in the images.[1]
A table is provided below, outlining the relevant state and territory
legislation.
In May 2017, RMIT University published research entitled Australians’
Experiences of Image-Based Abuse, which found that one in five Australians
have experienced ‘image-based abuse’. The authors explained the terminology as:
...a form of abuse, whether that abuse occurs through an
interpersonal violation, breach of trust, exploitation, public shaming and/or
harassment ... [Further] Government agencies, such as the Australian Office of
the e-Safety Commissioner, are likewise increasingly replacing the term
‘revenge pornography’ with ‘image-based abuse’, and are beginning to recognise
the serious nature, scope and impact of such harms.[2]
The research identified the following key survey findings:
- victims
of image-based abuse experience high levels of psychological distress
- women
and men are equally likely to report being a victim
- perpetrators
of image-based abuse are most likely to be male, and known to the victim
- men
and young adults are more likely to voluntarily share a nude or sexual image of
themselves
- women
are more likely than men to fear for their safety due to image-based abuse
- abuse
risk is higher for those who share sexual selfies, but they are not the only
victims
- one
in two Australians with a disability report being a victim of image-based abuse
- one
in two Indigenous Australians report image-based abuse victimisation
- image-based
abuse victimisation is higher for lesbian, gay and bisexual Australians
- young
people aged 16 to 29 years are also at higher risk of image-based abuse and
- four
in five Australians agree it should be a crime to share sexual or nude images
without permission.[3]
Image-based abuse can exist as a one-off occurrence, or
evolve to become a web of exposure and long term harm and distress to many, as
has been recently seen in the discovery
of schools and universities’ humiliating webpages.[4]
Current Commonwealth legislation
The Criminal Code Act
1995 (Cth), (the Code) contains a general provision relating to
a person’s use of the internet. A person is guilty of an offence under section
474.17 of the Code if they use a carriage service (which includes the internet
and like communications) in a way that a reasonable person would regard as
being, in all the circumstances, menacing, harassing or offensive.
Whether or not a reasonable person finds certain material or
a particular use of a carriage service offensive is an objective decision which
is to take into account the following matters listed under section 473.4 of the
Code:
- the
standards of morality, decency and propriety generally accepted by reasonable
adults
- the
literary, artistic or educational merit (if any) of the material and
- the
general character of the material (including whether it is of medical, legal or
scientific character).
This Bill does not propose to amend the existing offence
in the Code in any way. Rather, the proposed scheme will complement and operate
concurrently with both the broad criminal offence in the Code, and the existing
state and territory offences.
State and territory legislation
The table below provides a snapshot of the legislative
landscape relating to revenge porn.
State |
Legislative provision |
Type of image |
Penalty |
Federal |
Using a carriage service to
harass or cause offence. Section 474.17, Criminal Code Act 1995 (Cth). |
Not specified |
Maximum three years'
imprisonment. |
ACT |
Non-consensual distribution
of intimate images. Section 72C, Crimes Act 1900 (ACT). |
Intimate image of a person:
(a) means a still or moving
image, in any form—
(i) of a person's genital or anal region; or
(ii) for a female or a transgender or intersex person
who identifies as a female — of the person's breasts; or
(iii) of the person engaged in a private act; or
(iv) that depicts the person in a sexual manner or
context; and
(b) includes an image, in any form, that has been
altered to appears to show any of the things mentioned in paragraph (a).
(Defined in section 72A.) |
Maximum of three years'
imprisonment. Maximum of five years if the
image is of a person under the age of 16 years. |
NT |
No — but previous government
considered drafting new laws. |
|
NSW |
Distribute intimate image
without consent. Section 91Q, Crimes Act 1900 (NSW). |
Intimate image means:
(a) an image of a person's private parts, or of a
person engaged in a private act, in circumstances in which a reasonable
person would reasonably expect to be afforded privacy, or;
(b) an image that has been altered to appear to
show a person's private parts, or a person engaged in a private act, in
circumstances in which a reasonable person would reasonably expect to be
afforded privacy.
(Defined in section 91N.) |
Maximum of three years'
imprisonment. |
QLD |
No. |
|
SA |
Distribution of invasive image/humiliating
or degrading film. Section 26B-C, Summary Offences Act 1953 (SA). |
Invasive image of the person
if it depicts the person in a place other than a public place:
(a) engaged in a private
act; or
(b) in a state of undress
such that—
(i) in the case of a female — the bare breasts are
visible; or
(ii) in any case — the bare genital or anal region
is visible.
(Defined in section 91N.) |
Maximum of four years'
imprisonment if the image is of a person under the age of 17 years. Maximum of two years'
imprisonment in any other case. |
TAS |
No. |
|
VIC |
Section 41DA — Distribution
of intimate image. Summary Offences Act 1966 (Vic). |
Image is contrary to “community
standards of acceptable conduct”. |
Maximum of two years'
imprisonment. |
WA |
Restraints on respondents,
sections 10G and 61. Restraining Orders Act 1997 (WA). |
Not defined, talks about
intimate personal images. |
Maximum of two years'
imprisonment. |
Source: T Goldsworthy, ‘Revenge
porn laws may not be capturing the right people’, The Conversation, 29
September 2017.
Overseas jurisdictions
Similar to Australia’s proposal to directly address the harm
of image-based abuse, in November 2017, in the United States Senate, a Bill was
introduced to provide that it is unlawful to knowingly distribute a private,
visual depiction of an individual’s intimate parts or of an individual engaging
in sexually explicit conduct, with reckless disregard for the individual’s lack
of consent to the distribution, and for other purposes. A successful
prosecution under the proposed offence provision would need to prove that the
person knew the victim expected the image to remain private and that sharing
the image would harm the victim.[5]
The criminal offence proposes a penalty of a fine, up to five years’
imprisonment, or both. This Bill would operate concurrently with existing US
State offences that exist in many jurisdictions.[6]
The Criminal
Justice and Courts Act 2015 (UK) also creates an offence for a person to disclose
a private sexual photograph or film if the disclosure is made without the
consent of the depicted person and with the intention of causing that person
distress. This could be online behaviour or otherwise.
Gaps in legislative
coverage
While existing legislation includes a broad, ‘catch-all’
provision for online offence or harassment, there is widespread support for
legislative change to acknowledge and deter the non-consensual sharing of
intimate images, ‘which can have a significant impact on [a] victim,
psychologically and physically, as well as being damaging to the victim’s
reputation and standing’.[7]
However, support for change is not unanimous with academic Terrence Goldsworthy
arguing that:
there is insufficient evidence from the current laws’ success
rates to justify a move to specific laws. There has also been a failure to show
how these new [state and territory] offences are effective in tackling other
deficiencies identified in responses to revenge porn offences. These issues
include ensuring we have effective victim responses to revenge porn, such as
strategies to increase ease of reporting and reduce under-reporting.[8]
In this vein, social media organisations have responded to
the need to manage instances of revenge porn postings with, for example,
Facebook inserting a “Report” mechanism for an affected person to initiate the
removal of the intimate image.[9]
Consultation process on
possible legislative change
Following the Senate Standing
Committee on Legal and Constitutional Affairs’ inquiry into the issues (discussed
further below) on 23 November 2016, the Minister for Communications, Senator
Mitch Fifield, and the Minister for Women, Senator Michaelia Cash, announced
that the Government would conduct a public consultation process on a proposed
civil penalty regime for the non-consensual sharing of intimate images.[10] In May 2017, the Department of Communications and
the Arts released a Discussion Paper to seek stakeholder comments on a Civil penalties
regime for non-consensual sharing of intimate images.[11]
Why a civil penalty regime?
A civil penalty regime, instead of new criminal offences,
will provide the eSafety Commissioner with broad options to ensure that the
needs of vulnerable victims are dealt with promptly and with as little distress
as possible. Further, the ability to issue a formal warning to a young person
for distributing an intimate image may be a more appropriate action than to
charge a person with a criminal offence that could result in a criminal record
into adulthood. The proposed scheme would also act as a deterrent regime, where
even a threat to post an intimate image of another could make that person
liable to a penalty of $105,000. While the proposed scheme is likely to have
more implementation and administrative burdens that a criminal offence might,
stakeholders including the Law Council of Australia have expressed their
support for a variety of enforcement options for victims of image-based abuse.[12]
Committee consideration
On 7 December 2017, the Senate Selection of Bills
Committee reported that it had deferred consideration of the Bill to its next
meeting.[13]
However, in 2015–2016 the Senate Standing Committee on
Legal and Constitutional Affairs conducted an inquiry into the ‘Phenomenon
colloquially referred to as ‘Revenge Porn’, which involves sharing private sexual
images and recordings of a person without their consent, with the intention to
cause that person harm’ and other matters.[14]
The Report by that Committee made eight recommendations, including that the
Commonwealth government legislate, to the extent of its constitutional power
and in conjunction with state and territory legislation, offences for:
-
knowingly or recklessly recording an intimate image without
consent
-
knowingly or recklessly sharing intimate images without consent
and
-
threatening to take and/or share intimate images without consent,
irrespective of whether or not those images exist.[15]
During the course of the inquiry, the Committee ‘heard
overwhelming support from submitters and witnesses for legislative change,
including at the Commonwealth level.’[16]
Later that year, Labor members Tim Watts and Terri Butler introduced a Private
Members’ Bill to criminalise the distribution of private sexual material,
discussed further below.
Senate Standing Committee
for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills will
likely consider the Bill at its next meeting on 8 February 2018. The Bill
however, is scheduled for debate in the Senate on Wednesday 7 February and in
the House of Representatives on 8 February, leaving little time to consider any
matters raised by the Committee.
Policy position of
non-government parties/independents
A Private Members’ Bill introduced by Labor members Tim
Watts and Terri Butler on 17 October 2016 proposed new offences relating to use
of a carriage service for private sexual material, carrying penalties of up to five
years imprisonment.[17]
That Bill was removed from the Notice paper in May 2017. While the current Bill
proposes a civil penalty, complaint and objection scheme, the policy intent is
similar to the Bill proposed by the Labor Party members, that is, to respond to
the harm that is caused to a person who has their private sexual material
shared without their consent.[18]
No Senators or Members of Parliament appear to have
commented on the current Bill.
Position of major interest
groups
Submissions made to the 2015 Senate Inquiry into Revenge
Porn were supportive of possible legislative options for the Commonwealth. However,
there is no comment on the proposed Bill has been identified.
Financial implications
The Explanatory
Memorandum identifies a potential minor impact on Commonwealth expenditure
or revenue by this Bill and further indicates that ‘any additional funding for
the Office of the eSafety Commissioner to administer the provisions in this
Bill will be considered in the context of the 2018-19 Budget’.[19]
Statement
of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[20]
Parliamentary Joint
Committee on Human Rights
The Parliamentary Joint Committee for Human Rights had not
commented on the Bill at the date of publication of this Digest.
Key issues and provisions
Part 13 of the Broadcasting Services Act (BSA)
outlines the information gathering powers by the Australian Communications and
Media Authority and the eSafety Commissioner (the Commissioner). Section 169A
of the BSA defines what constitutes an ‘investigation’ by the
Commissioner for the purposes of Part 13, which in turn determines the purposes
for which the Commissioner’s information gathering powers may be employed. The
amendment at item 1 of the Bill will insert a reference to section 19C
of the Online Safety Act into section 169A of the BSA which will
facilitate the Commissioner’s investigation of a complaint where there has been
a non-consensual sharing of an intimate image.
The amendments to the Online Safety Act in Schedule 1
to the Bill include amending the simplified outline of the Act, in section 3,
to insert proposed subsection 3(ba) to include ‘administering a
complaints and objections system for non-consensual sharing of intimate images’.
Item 3 will explain that the system will include the following
components:
(a) a person who posts, or threatens to post, an
intimate image may be liable to a civil penalty;
(b) the
provider of a social media service, relevant electronic service or designated internet
service may be given a notice (a removal notice) requiring the
provider to remove an intimate image from the service;
(c) an
end-user of a social media service, relevant electronic service or designated
internet service who posts an intimate image on the service may be given a
notice (a removal notice) requiring the end-user to remove the
image from the service;
(d) a
hosting service provider who hosts an intimate image may be given a notice (a removal
notice) requiring the provider to cease hosting the image.
Items 4-18 insert or amend definitions of relevant
terms for the complaints system. Key definitions include:
- ‘Intimate
image’ has the meaning given by item 18, proposed subsection 9B(2),
which provides that 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 female, or a transgender or intersex person identifying as female—either
or both of the person’s breasts;
in circumstances in which an
ordinary reasonable person would reasonably expect to be afforded privacy.
The definition of intimate image is not limited to sexual
acts but extends to any depiction of a person: in a state of undress; using the
toilet; showering; having a bath or engaged in any other like activity in
circumstances in which an ordinary reasonable person would reasonably expect to
be afforded privacy. Further, the definition extends, in proposed subsection
9B(4) to include material that depicts, or appears to depict, the person
without attire of religious or cultural significance that they consistently
wear in public because of their religious or cultural background, in
circumstances in which an ordinary reasonable person would reasonably expect to
be afforded privacy. This is an unusual extension of the definition of intimate
image, which was proposed, but failed to proceed, by the Greens in the ACT in
2017, as an amendment to the ACT’s Crimes (Intimate Image Abuse) Amendment Bill
2017 (ACT).[21]
- ‘Consent’
has the meaning given by item 18, proposed section 9E, which provides
that consent means consent that is:
(a) express; and
(b) voluntary; and
(c) informed;
but does not include:
(d) consent given by a child;
or
(e) consent
given by an adult who is in a mental or physical condition (whether temporary
or permanent) that:
(i) make the adult incapable of giving
consent; or
(ii) substantially impairs the capacity
of the adult to give consent.
Another key definition is the term ‘designated internet
service’ which is defined in proposed section 9A to mean:
(a) a service that allows
end-users to access material using an internet carriage service; or
(b) a
service that delivers material to persons having equipment appropriate for
receiving that material, where the delivery of the service is by means of an
internet carriage service; but does not include a social media service; or a
relevant electronic service; or an on-demand program service (for the reason
that these are otherwise defined); or a service specified by the Minister in a
legislative instrument.
Under proposed subsection 9A(2) the Minister can
explicitly remove from the definition of ‘designated internet services’,
services which are not appropriate to be subject to the scheme. Proposed
section 9A will ensure that the scheme is suitably applicable to
technological advances.
Other terms that are newly defined in by this Bill by item
4 are data storage device, exempt post, hosting
service, hosting service provider, internet
carriage service (to align with the meaning in Schedule 5 to the BSA),
objection notice and on-demand program service.
Part 2 of the Online Safety Act outlines the
functions and powers of the eSafety Commissioner. Item 19 will amend
existing section 13, which provides a simplified outline of Part 2, to insert
the new function of administering a complaints and objections system for
non-consensual sharing of intimate images.
The complaints and objections scheme is inserted by item
24, which will insert new Division 3 into Part 2, consisting of new
sections 19A-19D.[22]
Operation of the Complaints
System
The complaints system is premised on a contravention of proposed
section 44B.If a person has reason to believe that another person has
posted or has threatened to post an intimate image online of that person
without their consent (that is, an apparent contravention of proposed
section 44B), the affected person may make a complaint to the Commissioner
about the matter. The complainant could be the subject of the image, an
authorised person or the parent or guardian of the depicted person (proposed
subsection 19A(3)). If the complainant is not able to identify the person
who allegedly contravened section 44B, the complainant must make a statement to
the Commissioner to that effect (proposed subsection 19A(2)).
Once the intimate image is the subject of a complaint
made to the Commissioner under section 19A, the Commissioner must be satisfied
that the person did not consent to the posting of the intimate image on the
service[23]
and that it did not constitute an exempt post (as defined under proposed
section 44M and discussed below). The Commissioner may then issue a removal
notice requiring:
-
the provider of the social media service, relevant electronic
service or designated internet service to take all reasonable steps to ensure
the removal of the intimate image from the service and do so within 48 hours
after the notice was given to the provider, or such longer period as the
Commissioner allows (proposed paragraphs 44D(1)(e-g)
-
the end-user to take all reasonable steps to ensure the removal
of the intimate image from the service and do so within 48 hours after the
notice was given to the end-user, or such longer period as the Commissioner
allows (proposed paragraphs 44E(1)(e-g)) or
-
the hosting service provider to take all reasonable steps to
cease hosting the intimate image and do so within 48 hours after the notice was
given to the provider, or such longer period as the Commissioner allows (proposed
paragraphs 44F(1)(f-h)).
In addition, or instead of, issuing a removal notice to a
person, proposed section 44C will allow the Commissioner to issue a formal
warning should a person contravene section 44B. The warning does not seem to
have any further effect on subsequent matters but is a ‘lighter touch mechanism
which the Commissioner may choose to use. The Commissioner may issue a formal
warning instead of pursuing a civil penalty order or issuing an infringement
notice where, for example, it is the first contravention by the person, or the
person is a child’.[24]
Objection Notice Scheme
If a person has reason to believe that an intimate image of
them is, or has been, provided on a social media service, relevant electronic
service or a designated internet service, the intimate image did not constitute
an exempt post (under proposed section 44M) and there is an Australian
connection;[25]
then the depicted person may give the Commissioner a notice objecting to the
provision of the intimate image on the service.
The Explanatory
Memorandum outlines that:
a person may give an objection notice to the Commissioner
even if the depicted person consented to the posting of the image on the
service. That is, an objection notice can be given to the Commissioner even if
there was no breach of the prohibition contained in proposed section 44B of the
Act. One of the purposes of the objection notice is to provide an avenue to
seek removal of intimate images that a person may regret providing consent to
share the image, or the person is suffering distress or harm that was not
foreseen at the time they provided consent.[26]
In a practical sense, an objection notice may be used when
a person initially gave consent to the image being shared and then later
withdrew that consent following a relationship breakdown or a change of mind. However,
the operation of the objection notice provision is not determined by whether or
not there was consent. Where a person is depicted in an intimate image that has
been provided on a service, and there is a nexus with Australia[27],
then the person can give the Commissioner an objection notice which can lead to
the Commissioner ordering the removal of the image. Given that the Commissioner
may investigate complaints under proposed section 19A, but not
objections, it would seem possible that a person could inundate the
Commissioner with objection notices and the Commissioner has only discretion
whether or not to issue a removal notice solely based on the contents of the
objection notice. The Commissioner is required to give written notice of a
refusal[28]
but this does not necessarily mean that the Commissioner must give reasons as
to why a removal notice is not issued, in response to an objection notice.
Removal Notice
Under Division 3 of proposed Part 5A of the Online
Safety Act, a removal notice can be given to provider of a social media
service, relevant electronic service or designated internet service, end-user, or
hosting service provider. The removal notice must relate to an intimate image
of a person that has been posted on a prescribed service by an end-user, and
that image must be the subject of a complaint or objection notice given to the
Commissioner. Further, the Commissioner must be satisfied that the person did
not consent to the posting of the intimate image (for complaints made under proposed
section 19A) and posting it did not constitute an exempt post. The
Commissioner may then give the provider of the service a written notice,
requiring the provider to take all reasonable steps to ensure the removal of
the intimate image from the service and to do so within 48 hours after the
notice was given to the provider; or such longer period as the Commissioner allows
(proposed sections 44D, 44E and 44F).
Compliance with removal
notice
A person must comply with a requirement under a removal
notice to the extent that the person is capable of doing so. A contravention of
this provision, proposed section 44G, results in a maximum penalty of
500 penalty units. This is equal to $105,000 for individuals and $525,000 for a
body corporate.[29]
The Explanatory Memorandum justifies this penalty amount on the grounds that
‘it reflects that the failure to comply with a removal notice can cause
significant distress and harm in itself.’[30]
Remedial direction
If a person is in contravention of section 44B (the civil
penalty provision), proposed section 44K will allow the Commissioner to
give the person a written direction requiring the person to take specified
action directed towards ensuring that the person does not contravene section
44B in the future. Failure to take this action will result in a civil penalty
of a maximum 500 penalty units (proposed subsection 44K(2)).[31]
Item 39 will amend section 88 to provide that an
application may be made to the Administrative Appeals Tribunal for a review of
a decision of the Commissioner under section 44D, 44E or 44F to give a removal
notice.
Infringement notices for
prescribed provisions
Further civil penalty alternatives are proposed by proposed
section 46A outlining that sections 44B, 44G, and 44K are subject to an
infringement notice under Part 5 of the Regulatory Powers Act, which
allows an infringement officer to issue an infringement notice if the officer
reasonably believes that a relevant provision has been contravened.[32]
The infringement officer for proposed sections 44B, 44G, and 44K is a
member of the staff of the Australian Communications and Media Authority who is
authorised by the Commissioner (proposed section 46A(2)). The amount of
the penalty payable under an infringement notice is determined by section
104(2) of the Regulatory Powers Act, which states that unless the Act
expressly provides otherwise, the amount to be stated in the infringement
notice for the alleged contravention of the provision is the lesser of
one-fifth of the maximum penalty that a court could impose, or 12 penalty units
where the person is an individual or 60 penalty units where the person is a
body corporate. The latter will apply to this infringement notice scheme,
bringing the amount to $2,520 for an individual or $12,600 for a body
corporate.
Additional enforcement powers are also included in the Bill,
including enforceable undertakings and injunctions (items 31 and 36), as
per Parts 6 and 7 of the Regulatory Powers Act respectively. The powers
will allow the Commissioner to accept and enforce undertakings relating to
compliance and allow the Commissioner to apply to the Federal Circuit Court of
Australia or Federal Court of Australia for an order relating to a breach of
the undertaking. Similarly the Commissioner can apply for an injunction in
relation to a threat to contravene a prohibition or a failure to comply with a
removal notice or direction.
Civil penalty provisions
The penalty provisions in the Bill are expressly civil
penalties to encourage people to refrain from sharing intimate images without
consent and to encourage compliance with the complaints and objections system.
If a person is found to have breached the provisions, there is no criminal
record for that person.
Proposed subsection 44B(1) creates a civil penalty for
a person to post, or make a threat to post, an intimate image of another person
on:
(a) social media service
(b) a relevant electronic
service or
(c) a designated internet
service
if either person is ordinarily resident in Australia.
Importantly, proposed subsection 44B(2) makes it
explicit that subsection (1) does not apply if the second person consented
to the posting of the image by the first person. In a practical example, if
a third person obtains the image (either directly or indirectly from the first
person’s post), and then proceeds to re-post it without the consent of the
person depicted in the intimate image, then that third person could be liable
under the provision where the initial first person cannot.
Proposed subsection 44B(3) notes that subsection
44B(1) does not apply if the intimate image is of another person without
particular attire of religious or cultural significance and the first person
did not know that because of the second person’s religious or culture
background that the second person consistently wears that attire whenever the
second person is in public. The Explanatory Memorandum notes that this
exception ‘is required because, unlike the other definitions of intimate images
in subsection 9B(2) and (3), it may not be clear from the image itself that it
is an intimate image’.[33]
Proposed subsection 9B(4) explicitly covers the depiction of a person
without attire of religious or cultural significant as an intimate image if
that person consistently wears that attire, to recognise that ‘an image of a
person without particular religious or cultural attire that they consistently
wear, can cause significant harm to the person’.[34]
A contravention of the proposed civil penalty provision will
attract a maximum penalty of 500 penalty units. Under the Crimes Act 1914,
a penalty unit in a law of the Commonwealth is equivalent to $210, which means
the maximum penalty that can be imposed on an individual under this provision
is $105,000. Under the Regulatory Powers Act the maximum penalty that
may be imposed on a corporation is five times the maximum penalty specified in
the civil penalty provision, which is $525,000 for this provision. The
Explanatory Memorandum justifies this penalty amount as reflecting ‘the
extremely serious nature of the non-consensual sharing of intimate images, and
the significant harm and distress that can be caused to a person from the
sharing of intimate images’.[35]
The use of the word ‘post’ is not used across all technology
platforms but is a defined term in section 7 of the Act. Item 5 of the
Bill will amend the definition to include designated internet services to
explicitly provide that for the purposes of the Act, ‘material is posted
on a social media service, relevant electronic service or designated internet
service by an end-user if the end-user causes the material to be accessible to,
or delivered to, one or more other end-users using the service’. This
definition would cover words frequently used synonymously with post such as
share, tweet, upload, publish and snap.
Proposed section 44G is another civil penalty in the
scheme (outlined above) which will apply when a person breaches the
requirements of a removal notice. The maximum penalty is 500 penalty units.
Other provisions
Exempt post
Proposed section 44M defines an exempt post
as a post that:
- is
necessary for enforcing an Australian law
- is
for the purposes of court or tribunal proceedings
- is
for a genuine medical or scientific purpose
-
an ordinary reasonable person would consider acceptable, having
regard to the following matters:
(i) the
nature and the content of the intimate image
(ii) the
circumstances in which the intimate image was posted
(iii) the
age, intellectual capacity, vulnerability or other relevant circumstances of
the depicted person
(iv) the
degree to which the posting of the intimate image affects the privacy of the depicted
person
(v) the
relationship between the end-user and the depicted person
(vi) whether
the depicted person has died, and if so, how much time has elapsed since the
depicted person’s death
(vii) any
other relevant matters
-
is posted by the Commissioner or an officer of ACMA and was in
connection with the exercise of a power or the performance of a function under
the Online Safety Act or
-
meets a requirement specified by the Minister in a legislative
instrument (proposed subsection 44M(1)).
This exception is ‘to ensure that images that are considered
socially acceptable to share, can in fact be shared, notwithstanding they may
meet the definition of intimate image. Examples of this include historical
images of indigenous Australians or other indigenous peoples, family photos of
small children being bathed by their parents, photographs of models that were
specifically taken with permission for advertising or publication, or images
that are solely satirical in nature’.[36]
Good faith provision
Section 89 of the Act offers protection from civil
proceedings against a person in respect of loss, damage or injury of any kind
suffered by another person because of prescribed acts done in good faith. Item
40 will amend this section to include that the follow acts are similarly
protected:
- the
making of a complain under section 19A
- the
giving of an objection notice under section 19B
-
the making of a statement to, or the giving of a document or
information to, the Commissioner in connection with an investigation under
section 19C and
-
the making of a statement to, or the giving of a document or
information to, the Commissioner in connection with a consideration under
section 19D.
Concluding
comments
The Bill offers a rigorous regime that will address the
harm that can come as a consequence of a person posting an intimate image of
another, both with and without that person’s consent. While there are existing
arrangements at the state and territory levels that criminalise conduct
associated with revenge porn, the Commonwealth complaints and objections regime
will provide another avenue for victims to take action. The costs of
implementing and administering the scheme need to be considered through the
normal Budget processes.
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. See,
for example, Crimes
(Intimate Image Abuse) Amendment Bill 2017 (ACT).
[2]. Dr
N Henry, Dr A Powell and Dr A Flynn, Not
just ‘revenge pornography’: Australian’s experiences of image-based abuse: a
summary report, RMIT University, Melbourne, May 2017, pp. 3–4.
[3]. Ibid.,
p. 3.
[4]. E
Baker, ‘Revenge
porn website targeting Australian women and schoolgirls resurfaces’, The
Canberra Times, (online edition), 24 January 2018.
[5]. See
M Dickey, ‘Senators
introduce revenge porn bill’, TechCrunch, 28 November 2017 and United
States Senate, ‘Ending
Nonconsensual Online User Graphic Harassment Bill, 2017, US Senate, 28
November2017.
[6]. For
further detail see Senate Standing Committee on Legal and
Constitutional Affairs, Inquiry into the ‘Phenomenon
colloquially referred to as “revenge porn”, which involves sharing private
sexual images and recordings of a person without their consent, with the
intention to cause that person harm’, The Senate, Canberra, 2016, p.12.
[7]. Ibid., p.49.
[8]. T
Goldsworthy, ‘Revenge
porn laws may not be capturing the right people’, The Conversation, (online
edition), 29 September 2017.
[9]. H
McDonald, ‘Facebook warned it faces legal action from “revenge porn” victims’, The Guardian, (Australia edition), 13 January 2018.
[10]. M
Fifield (Minister for Communications) and M Cash (Minister for Women), New
eSafety Commissioner appointed in expanded role to combat non-consensual
sharing of intimate images, media release, 23 November 2016.
[11]. Department
of Communications and the Arts, Civil penalties
regime for non-consensual sharing of intimate images, Discussion paper,
May 2017.
[12]. Law
Council of Australia, Submission to
Department of Communications and the Arts, Civil penalties regime for
non-consensual sharing of intimate images, 7 July 2017, p. 5.
[13]. Senate
Standing Committee for Selection of Bills, Report,
15, 2017, The Senate, Canberra, 7 December 2017.
[14]. Senate Standing Committee on Legal and Constitutional Affairs,
Inquiry into the ‘Phenomenon
colloquially referred to as “revenge porn”’, op. cit.
[15]. Ibid., recommendation 2, p. vii.
[16]. Ibid.,
p. 50.
[17]. Parliament
of Australia, ‘Criminal
Code Amendment (Private Sexual Material) Bill 2016 homepage’,
Australian Parliament website.
[18]. Explanatory Memorandum, Criminal Code
Amendment (Private Sexual Material) Bill 2016, p. 2.
[19]. Explanatory
Memorandum, Enhancing Online Safety (Non-Consensual Sharing of Intimate
Images) Bill 2017, p. 4.
[20]. The
Statement of Compatibility with Human Rights can be found at page 5 of the Explanatory
Memorandum to the Bill.
[21]. K
Burgess, ‘Greens
soften parts of controversial “revenge porn” bill’, The Canberra
Times, 3 August 2017, p.6.
[22]. Note
that the civil penalty provision to enliven the complaints system is proposed
section 44B, inserted into new Part 5A by item 26.
[23]. See
proposed paragraphs 44D(1)(d), 44E(1)(d), 44F(1)(d).
[24]. Explanatory
Memorandum, Enhancing Online Safety (Non-Consensual Sharing of Intimate
Images) Bill 2017, p. 33.
[25]. That
is, the depicted person is ordinarily resident in Australia; or the end-user is
ordinarily resident in Australia; or the intimate image is hosted in Australia
by a hosting service (proposed paragraph 19B(1)(d)).
[26]. Explanatory
Memorandum, Enhancing Online Safety (Non-Consensual Sharing of Intimate
Images) Bill 2017, p. 29.
[27]. See
proposed section 19B.
[28]. See
proposed subsections 44D(3), 44E(3), 44F(3).
[29]. Section
4AA of the Crimes
Act 1914 provides that a penalty unit is equal to $210. Subsection
46(1) of the Online Safety Act provides that civil penalty provisions in
that Act are enforceable under Part 4 of the Regulatory Powers Act.
Paragraph 82(5)(a) of the Regulatory Powers Act provides that the
maximum penalty that may be imposed on a corporation is five times the maximum
penalty specified in the civil penalty provision.
[30]. Explanatory
Memorandum, Enhancing Online Safety (Non-Consensual Sharing of Intimate
Images) Bill 2017, p. 36.
[31]. The
Explanatory Memorandum erroneously states that the provision allows the Minister
to give a person a remedial direction, instead of the Commissioner: Explanatory
Memorandum, Enhancing Online Safety (Non-Consensual Sharing of Intimate
Images) Bill 2017, p. 37.
[32]. Section
99 of the Regulatory
Powers (Standard Provisions) Act 2014.
[33]. Explanatory
Memorandum, Enhancing Online Safety (Non-Consensual Sharing of Intimate
Images) Bill 2017, p. 32.
[34]. Ibid.,
p. 23.
[35]. Explanatory
Memorandum, Enhancing Online Safety (Non-Consensual Sharing of Intimate
Images) Bill 2017, p. 32.
[36]. Ibid.,
p. 38.
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