Criminalising the Non-Consensual Online Sharing of Intimate Images
The Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Act 2018 (Cth) (the ‘Act’) commenced on 1 September 2018. The Act amends the Enhancing Online Safety Act 2015 (Cth) (the '2015 Act') and the Criminal Code Act 1995 (Cth) to implement the Government’s commitment to introduce a civil and criminal penalty regime to combat the non-consensual sharing of intimate images.
The Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2017 (Cth) (the 'Bill') was first introduced to the Senate on 6 December 2017. For more information on the Bill as it was introduced, see TimeBase's earlier article.
Civil and Criminal Penalties
The Act amends the 2015 Act to establish a civil penalties scheme specifically to address image-based abuse. Under the scheme, victims are assisted through the removal of the images and a range of civil remedies are available to them to hold the person responsible accountable. Under the Act, the 2015 Act eSafety Commissioner is responsible department for the administration and enforcement of the civil penalties scheme. The eSafety Commissioner also has the ability to take action such as issuing formal warnings and seeking injunction or civil penalty orders from a court against the person responsible.
However, since the Bill was introduced in the Commonwealth Senate on 6 December 2017, the Parliament made several new amendments to the Bill.
As summarised in the Bill's supplementary explanatory memorandum:
"2. The amendment [to the Bill] expands upon the civil prohibition and civil penalty regime introduced in the Bill, applying increased criminal penalties applying to the most serious instances of sharing of intimate images.
3. The amendments [to the Bill] will introduce a definition of ‘private sexual material’, create two aggravated offences, and require consent be taken into account when determining offensiveness in Part 10.6 of the Criminal Code 1995."
The amendments introduce criminal penalties under the Criminal Code Act 1995 (Cth) for more serious instances of non-consensual sharing of intimate images. As summarised by the Bill's supplementary explanatory memorandum:
“[I] t will be a offence to:
- use a carriage service to transmit an intimate image;
- use a carriage service to make a threat about an intimate image; or
- possess an intimate image to use through a carriage service.”
The Act also makes a distinction between standard aggravated offences and special aggravated offences. Under the standard aggravated offence, an offender is subject to a maximum sentence of five years imprisonment. Whereas the special aggravated offence relates to perpetrators who have already had three or more civil penalty orders against them under the civil prohibition and penalty regime under this Act. This means that the perpetrator will be subject to a maximum sentence to seven years.
The Department of Communications and the Arts in their media release summarises the cumulative civil and criminal implications of the Act into three main points:
“The eSafety Commissioner can now issue 'removal notices' to perpetrators, websites, content hosts and social media providers, directing them to remove offending content within 48 hours.
Individuals may be subject to civil penalties of up to $105,000 and corporations up to $525,000 if they do not remove offending content when directed to by the Office of the eSafety Commissioner.
Perpetrators may also face imprisonment for up to five years, or seven years if they have received three civil penalty orders.”
The addition of the criminal offences is also part of the Government’s recognition of the severity and impact of these actions. As outlined in the Bill’s supplementary explanatory memorandum:
“The posting of an intimate image without consent is also an attack on a person’s reputation. Not only does it cause harm and distress for the victim, it can also have broader impacts for the victim’s reputation. It can have far reaching consequences for the victim’s personal relationships and friendships, and may also impact a victim’s employment or other prospects which are contingent on their reputation.
The Australian public recognise the abhorrence of this practice and the significant harm it causes victims, and expect an appropriate regime to be enacted to prevent and minimise harm to victims or potential victims. The measures in this Bill address this expectation.”
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Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Act 2018 (Cth) – Act and supporting documents are available from TimeBase's LawOne Service.
Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2017 (Cth) - Bill and supporting information available from TimeBase's LawOne Service.