CHAPTER 1
Introduction and background
Introduction
1.1
On 27 June 2013, the Senate appointed the Select Committee on
Cyber Safety to inquire into and report, by 30 August 2013, on options for
addressing the issue of sexting by minors.[1]
Conduct of the inquiry
1.2
The committee's inquiry was advertised on its website and government
agencies and interested stakeholders were invited to make a submission. The
committee received 25 submissions. A list of submissions authorised for
publication by the committee is provided in Appendix 1.
1.3
The committee held a private briefing in Melbourne on 1 August 2013. The
committee agreed to make public the Hansard transcript of the briefing,
which is available on the committee's website. A list of witnesses who gave
evidence at the briefing is provided in Appendix 2.
Acknowledgments
1.4
The committee thanks all those who contributed to the inquiry by making submissions,
providing additional information or appearing before it to give evidence. In
particular, the committee thanks the chair of the Victorian Parliamentary Law
Reform Committee, Mr Clem Newton-Brown, MP, for briefing the committee on the
work undertaken by the Law Reform Committee for its inquiry into sexting.
Context of the inquiry
1.5
The issue of cyber safety has received close scrutiny as the use of new
technologies has brought not only great benefits but also risks particularly
for young people. The Parliament recognised the need to explore issues of cyber
safety and established the Joint Select Committee on Cyber-Safety (Joint Select
Committee) in March 2010. The Joint Select Committee was reappointed in the 43rd
Parliament in September 2010.[2]
In June 2011, the Joint Select Committee tabled its interim report High-Wire
Act: Cyber‑Safety and the Young. The report included an examination
of the issue of sexting by minors in the context of cyber bullying among young
people.
1.6
The report highlighted that sexting can pose significant risks for young
people, and that further research is needed to understand the motives behind
this behaviour and develop effective intervention strategies.[3]
While the Joint Select Committee made recommendations relating to cyber
bullying and cyber safety generally, including enforcement and educational
strategies, no recommendations were made specifically in relation to sexting.
1.7
In May 2013, the Victorian Parliament Law Reform Committee tabled the
final report for its Inquiry into Sexting (Victorian Parliament Report).[4]
The report noted that sexting, particularly by young people, has become an
issue of national, and international, interest and concern. In addition, media
reports in Victoria in 2011 had highlighted the prevalence of sexting in high
schools in Victoria and the serious potential consequences both for young
persons photographed, and for those who receive or disseminate such
photographs.[5]
1.8
The report examined the incidence, prevalence and nature of sexting in
Victoria, the extent and effectiveness of existing awareness and education
campaigns in relation to sexting, and the appropriateness of existing laws that
may apply to the practice of sexting.
1.9
The Victorian Parliament Report made 14 recommendations in relation to
the legal and policy framework around sexting in Victoria.[6]
In particular, the report recommended (Recommendation 6) that the Crimes Act
1958 (Vic) and the Classification (Publications, Films and Computer
Games) (Enforcement) Act 1995 (Vic) be amended to provide defences for
child pornography offences in those Acts to cover age-appropriate sexting.[7]
It was also recommended (Recommendation 7) that once amending legislation was
introduced in the Victorian Parliament to give effect to Recommendation 6, that
the Victorian Government advocate to the Standing Council on Law and Justice
that the Commonwealth, states and territories amend their criminal legislation
to provide similar defences to child pornography offences.[8]
1.10
In addition, the Law Reform Committee recommended that a specific non‑consensual
sexting offence be introduced into the Summary Offences
Act 1966 (Vic) (Recommendation 9).[9]
What is sexting?
1.11
The term 'sexting' refers to a range of behaviours involving the
creation and transmission of sexual content through electronic media. There is
no single accepted definition of sexting, and various definitions have been
proposed in recent times. The Attorney-General's Department (AGD) and the
Department of Broadband, Communications and the Digital Economy (DBCDE) adopted
a definition used by the Victorian Parliament Report, which defined sexting as 'the
creating, sharing, sending or posting of sexually explicit messages or images
via the internet, mobile phones or other electronic devices by people,
especially young people'.[10]
1.12
The Australia Communications and Media Authority (ACMA) articulated a
simpler understanding of sexting to mean 'the sending of sexual messages,
photos or videos, online or using a mobile phone'.[11]
Types of sexting behaviour
1.13
Sexting can occur in a variety of contexts and through a variety of
media, ranging from relatively benign, consensual behaviours to situations in which
sexting is coerced or exploitative. The Victorian Parliament Report noted that
sexting could include behaviours as diverse as:
- a 15 year-old girl taking a topless photograph of herself and
sending it via mobile phone to her 16 year-old boyfriend;
- the boyfriend showing the photograph to his friends on the screen
of his mobile phone;
-
romantic partners engaging in a webchat where they 'flash' one
another;
-
a person posting a sexually explicit image on someone else's
Facebook page;
- a person recording a sexual assault using their mobile phone
camera;
-
a person installing a hidden camera in a swimming pool changing
room to record people getting changed; and
-
a person sending an 11 year-old child explicitly-worded text
messages as part of 'grooming' the child.[12]
1.14
The Australian Psychological Society noted that there are a number of
dimensions to different behaviours broadly categorised as sexting, which need
to be considered when examining a specific behaviour. These dimensions are:
- the content of the communication (including whether the
communication includes text, images or video, and the degree of sexualisation
present in the content);
-
the use of the communication (including the number of people
depicted in the content, and the number of people with whom the content is
shared);
-
the role of participants (including the producer, sender(s) and
receiver(s) of the material);
-
the intent of the communication (whether benign or harmful, and
with or without the consent of the subject); and
-
the age of the participants.[13]
Stages of peer-to-peer sexting
1.15
The Law Council of Australia (Law Council) noted that there are a number
of aspects to sexting. These are:
- requesting an image or video;
-
creating an image (often a self-portrait);
- sharing an image with an intended recipient (consensually); and
-
sharing an image with others (often without the subject's
permission).[14]
1.16
While harm may be possible at each stage of this process, submitters
highlighted that the most serious potential harm arising from sexting behaviour
often occurs only at the final stage, when sexting content is shared beyond its
initial intended recipient(s). This is sometimes referred to as non-consensual
sexting, to differentiate it from behaviour in which the subject of sexual
content willingly shares that content with others.
1.17
A common scenario cited in this type of sexting could occur where
intimate images are consensually created and shared between an individual and
his/her partner, only for these images to be circulated more widely by one
party after the relationship breaks down, in an attempt to harm the reputation
of the individual depicted.[15]
Issues specific to sexting among minors
1.18
Although sexting can equally occur between two adults, the terms of
reference for this inquiry focus on the issue of sexting by minors. Sexting by
minors raises some specific concerns that do not apply in the context of
peer-to-peer sexting between adults. This is because sexual content depicting
minors can often constitute child pornography under existing Commonwealth,
state and territory laws, leading to potentially severe consequences for minors
involved in the creation, possession or communication of such content.[16]
1.19
In additional to legal concerns relating to child pornography offences,
the ACMA noted that young people may be subject to heightened levels of
peer pressure to create or forward sexual images, and that the impact of the
subject's loss of control over private images may be more serious and lasting
for young people than adults.[17]
The Australian Psychological Society observed:
Given that children and young people are still in the process
of developing the ability to assess risk and manage the consequences of their
decisions, they are particularly vulnerable to the risks of cyber threats and
associated technologies. The instantaneous nature of such technologies only
heightens such risks.[18]
1.20
The Alannah and Madeline Foundation highlighted that the issue of
sexting among minors should be viewed in its proper cultural context:
It is easy to think of sexting as aberrant, even abhorrent
and commentators from a number of discourses depict it in this way. However,
commentators closer to the age of the doers tend to view this behaviour as more
benign and part of an image-sharing culture in a sexually permissive society,
one in which young people see sexualised images virtually everywhere they look.
It is not surprising that they create their own sexual imagery, and perhaps unrealistic
to expect that they live up to a higher standard than we set for the rest of
society.[19]
Prevalence of sexting behaviour by
minors in Australia
1.21
It is unclear exactly how prevalent sexting behaviours are among
Australian young people. However, the Law Council noted:
Notwithstanding the absence of large scale data about the
prevalence of sexting amongst young people in Australia, a number of
commentators and youth organisations have found sexting by young people to be
taking place with some frequency.[20]
1.22
Several recent studies provide additional information on this issue. In
a survey conducted in 2012 by the ACMA, 13 per cent of respondents aged 16–17
years reported that either they or someone within their group of friends has
sent sexually suggestive nude or nearly nude photos or videos of themselves to
someone else, while 18 per cent of respondents aged 16–17 years reported that
they or someone in their group of friends had received such images or videos of
someone else.[21]
1.23
Other surveys conducted in Australia over the past several years have
reported varying results in relation to the percentage of Australian teenagers
engaging in sexting behaviour, with findings ranging between seven and 20 per
cent.[22]
1.24
The committee notes that a study is currently being conducted by
researchers from the Sydney Institute of Criminology, the University of NSW and
the University of Western Sydney about the sexting experiences of young people
aged between 13 and 18 years of age. Once completed this study may provide
more rigorous prevalence data and insights into sexting activities.[23]
Possible negative consequences of
sexting behaviour by minors
1.25
In addition to possible legal consequences of sexting by minors
(discussed below), the social impacts of sexting, particularly non-consensual
sexting, can be serious and long-lasting. BoysTown commented:
When 'sext' images become public, the impacts can be
multi-faceted and significant. Young people can find themselves the victims of
humiliation, bullying, harassment, threat, punishment (from school and/or
parents) and criminalisation. The flow on from these events can also be severe,
impacting on young people's wellbeing, health, school, employment, family and
peer relationships.[24]
1.26
The permanence of digital content is a pressing concern in relation to
sexting. Once digital images are shared, and particularly if they are posted on
the internet, it can be almost impossible to retrieve and destroy that content.
The potential for content posted online to be widely circulated in a very short
period of time compounds this problem.[25]
Current legal framework in respect of sexting by minors
1.27
The Law Council noted that there are currently no legislative provisions
at the Commonwealth and state and territory levels that specifically deal with
an offence of sexting.[26]
However, several criminal and civil laws may apply to sexting behaviours,
depending on the circumstances. The committee notes that these laws were
designed to deal with activities associated with child pornography.
Child pornography offences
1.28
AGD noted that responsibility for combating child sexual exploitation is
shared between the Commonwealth, states and territories, and all jurisdictions
have enacted offences relating to child pornography. It is possible that
sexting behaviour could be captured within the scope of these offences, at both
the Commonwealth and state and territory level.[27]
1.29
Commonwealth offences in relation to child pornography are found in the Criminal
Code Act 1995 (Criminal Code). AGD noted that while these offences do not
directly criminalise sexting, the practice may be captured by offences
contained in Subdivision D of Division 474 of the Criminal Code, which
criminalise a range of conduct relating to the use of a 'carriage service' such
as the internet or mobile telephone for child pornography.[28]
1.30
Section 474.19 of the Criminal Code provides that it is an offence to
use a carriage service for child pornography material (by accessing,
transmitting, publishing, distributing, advertising, promoting or soliciting
such material). Section 474.20 of the Criminal Code provides that it is an
offence to possess, control, produce, supply or obtain child pornography
material for use through a carriage service.
1.31
For the purposes of the Criminal Code, child pornography is material that
depicts a person under 18 engaged in a sexual pose or sexual activity, or that
has as its dominant characteristic the depiction for a sexual purpose of a
sexual organ of a person under 18, and which reasonable persons would regard as
being, in all the circumstances, offensive.[29]
The offences in sections 474.19–20 of the Criminal Code carry maximum penalties
of 15 years imprisonment.[30]
1.32
AGD stated that while these offences may be applicable to some sexting
behaviours between minors, they are rarely used in such cases:
...the offences are subject to a range of protections to ensure
that behaviour such as sexting, which is not exploitative of or harmful to
children, is not inappropriately captured by the Criminal Code. There is scope
for law enforcement to take the circumstances of the particular case into
account before proceeding to investigate or prosecute such offences. Similarly,
prosecution agencies are required to consider whether the prosecution of a
young person is, in all the circumstances, in the public interest, before
proceeding with the case.
As an additional safeguard, under section 474.24C of the
Criminal Code, the consent of the Attorney-General is required prior to the
commencement of proceedings for an offence against Subdivision D of Part 10.6 of
the Code (which includes Commonwealth online child pornography offences) if the
person was under 18 years of age at the time he or she allegedly engaged in the
conduct constituting the offence.
To date, the Attorney-General's consent has only been sought
in circumstances where a young person's conduct was clearly malicious or
exploitative.[31]
1.33
Each state and territory has separate criminal legislation that may be
used to regulate sexting, with the Victorian Parliament Report noting that
'since 2005, no two jurisdictions in Australia have had the same child
pornography laws'. As a consequence, there are significant differences in
relation to the definitions, interpretations, elements of the offences and age
of the relevant child contained in each jurisdiction's legislation.[32]
1.34
The committee has not examined the relevant legislation of each state
and territory in relation to sexting. However, submissions provided by the Law
Council of Australia and the National Children's and Youth Law Centre contain
information on the current law in the states and territories.[33]
The Victorian Parliamentary Report also provides a list of the relevant
legislation in all jurisdictions.[34]
Sex Offender Registration
1.35
Each state and territory jurisdiction in Australia has legislation providing
for the establishment and maintenance of a register for child sex offenders,
based on national model legislation agreed to by the Australasian Police
Ministers Council in 2004.[35]
A national database of information about offenders registered under each of the
state and territory schemes, the Australian National Child Offender Register,
is managed at a Commonwealth level by CrimTrac, and is accessible by the
registrars of the sex offender registries in each jurisdiction.[36]
1.36
In almost all Australian jurisdictions, individuals over 18 years of age
who are convicted of specified offences, including child pornography offences,
must automatically be registered on the relevant sex offender registry, while
the registration of offenders who are under 18 years of age is generally at the
discretion of the courts. Registration on a sex offenders registry requires the
individual to undertake mandatory reporting for a period of up to eight years
(depending on the jurisdiction), as well as limiting the individual's ability
to take up employment in areas involving young people.
Other Commonwealth offences which
may be applicable
1.37
Section 474.17 of the Criminal Code provides that it is an offence for
an individual to use a carriage service to menace, harass or cause offence. This
offence carries a maximum sentence of three years imprisonment.
Tasmania Police indicated in its submission that, in circumstances where
sexting images (whether of adults or children) are maliciously forwarded to
others by an individual without the consent of the subject, Tasmania Police may
seek prosecution under this offence.[37]
Civil offences
1.38
In addition to criminal offences, sexting behaviour may constitute
breaches of civil law, depending on the circumstances.
1.39
The Australian Federal Police noted in its submission that certain
sexting behaviours may constitute sexual harassment under the Sex
Discrimination Act 1984 (Cth).[38]
The Victorian Parliament Report noted that two common law torts, breach of
confidence and intentional infliction of harm, may potentially apply where
intimate images of an individual are distributed without consent.[39]
Copyright and defamation laws may also be applicable in certain circumstances.[40]
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