The Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2017 (the “Bill”), introduced into the Australian Senate on the 6th December 2017, is the proposed next step in the Australian Government’s commitment to combatting the non-consensual sharing of intimate images. The importance of the proposed legislation is highlighted in the Bill’s explanatory memorandum:
“According to a report published in May 2017 by the Royal Melbourne Institute of Technology University, 1 in 5 Australians, 1 in 2 Australians with a disability and 1 in 2 Indigenous Australians have experienced the non-consensual sharing of intimate images. The psychological impact on victims can be significant, and negative implications (whether perceived or actual) can affect their reputation, family, employment, social relationships and even personal safety.
While the non-consensual sharing of intimate images can often occur as a result of the ex-partner of a victim distributing images of the victim for the purposes of seeking revenge, it can also involve acquaintances or complete strangers distributing the images. The practice is generally intended to cause harm, distress, humiliation and embarrassment, whether through the actual sharing and distribution of intimate images, or the threat to share, often in an attempt to control, blackmail, coerce or punish a victim (commonly referred to as ‘sextortion’). Other motives might include sexual gratification, fun, social notoriety and/or financial gain.”
The Bill is the result of a long consultation period, conducted by the Australian Government, to understand the implications of the non-consensual sharing of intimate images on social media and other online platforms. As part of this process, the Government released the discussion paper: “Civil penalties regime for non-consensual sharing of intimate images, published on the 20th May 2017. The scope of the consultation is outlined in the discussion paper to the consultation:
“This consultation is seeking views on:
a) how a proposed civil penalty regime might best complement existing regulation and other initiatives, and how it might be framed;
b) the expansion of the role of the Commissioner to administer the new scheme, and how the Commissioner might enforce the civil penalty regime; and
c) definitions of key terms and behaviours. Views are not being sought on the effectiveness or operation of existing criminal offences, but rather on the proposed civil penalty regime that will complement them.”
The discussion paper recommended a civil penalty regime, which would complement the current criminal regime. Additionally, the paper suggested improvements to the complaints process and information gathering powers of the Australian Communications and Media Authority. Further information on the discussion paper can be found.
According to the summary in the Explanatory Memorandum:
“The Bill will amend the Enhancing Online Safety Act 2015 (the Online Safety Act) to establish a civil penalty regime for the non-consensual sharing of intimate images. The Bill will:
The term ‘non-consensual sharing of intimate images’ refers to the sharing or distribution by a social media service, relevant electronic service, or designated internet service of an image or video of a person or persons portrayed in a sexual or otherwise intimate manner, which has been shared without consent. This content might or might not have been obtained with the consent of the person depicted in the image or video. It is colloquially known as ‘revenge porn’ and commonly referred to as ‘image-based abuse’.”
The amendments proposed by the Bill are contained in the Schedule to the Bill, with amendments being proposed to the Broadcasting Services Act 1992 (the “Broadcasting Act”) and the Enhancing Online Safety Act 2015 (the “Online Safety Act”). Importantly, a new subsection 3(ba) has been inserted into the Online Safety Act. This subsection proposes to include “administering a complaints and objections system for non‑consensual sharing of intimate images” to the simplified outline of the Act.
The Bill additionally inserts into the the Online Safety Act the planned components of the complaints and objections system for non‑consensual sharing of intimate images:
"(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."
The Bill then proposes to amend the Online Services Act to create the complaint regime for non-consensual sharing of intimate images, including definitions, the complaints process and investigation of complaints.
The civil penalties for non-consensual sharing of intimate images are contained in the proposed Part 5A to the Online Services Act. The simplified outline of this part is contained in section 44A:
TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.
Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2017 (Cth) - Bill and Explanatory Memorandum available from TimeBase's LawOne service
Enhancing Online Safety Act 2015 (Cth) available from TimeBase's LawOne service
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