Australia could have Commonwealth legislation regarding image-based abuse, or “revenge porn,” by the end of this year, but it will not be criminal offences.
Distributing intimate images of your ex-partner is a vile act. But it is continuing to happen at an alarming rate in Australia. The latest high profile case is that of Rob Kardashian posting images of his wife Blac Chyna. Even after his Instagram account was taken down, he carried the abuse to Twitter.
The University of Sydney has also found itself embroiled in a Facebook scandal with images being shared in a closed group for men to view, rate and harass victims.
It is widely accepted among state and territory governments that this behaviour is wrong and needs to be prevented but an agreement on how cannot be reached.
Federal Government’s Civil Penalties Scheme
The Government released a discussion paper in June 2017 on a proposed civil penalties scheme which would provide remedies such as fines, enforceable undertakings, take down notices and injunctions. The scheme could also give the current Children’s eSafety Commissioner more power to remove or limit the distribution of images flagged through the online complaints portal due to launch later this year. The Commissioner’s role was expanded in November last year to include combatting image-based abuse.
The discussion paper comes over a year after the Senate Inquiry released its report and recommended the Government establish offences to criminalise image-based abuse that are consistent with those already in existence at a state level. The Senate also recommended empowering a Government agency to issue take down notices and implement an awareness campaign to complement the offences.
Despite these recommendations, private members’ bills introduced in October 2015 and October 2016 proposing criminal sanctions were never debated and are no longer before the house.
The federal Government has been adamant in its opposition to imposing criminal sanctions on revenge porn. This is despite recommendations for offences to be implemented from women’s legal services across the country, the Commonwealth Director of Public Prosecutions,’ and academic experts. The Council of Australian Governments Advisory Panel on Family Violence against Women and their Children also recommended federal legislation in their final report, stating perpetrators should be made accountable for their actions.
State approach
Victoria and South Australia
Currently, Victoria and South Australia have laws against the non-consensual sharing of intimate images, also known as “up-skirting”, “down-blousing”, “sextortion” or “revenge porn”.
New South Wales
On 27 June 2017, New South Wales Parliament passed the Crimes Amendment (Intimate Images) Bill 2017 which creates a new offence for a person to intentionally record or distribute, or threaten to record or distribute, an intimate image of another person without that person’s consent.
People who record or share intimate images without consent could be jailed for up to three years and fined as much as $11,000 under tough new laws.
NSW Attorney General, Mark Speakham said:
This activity is a form of abuse that can cause significant distress to victims. This Bill will empower victims and provide them with the legal right to ensure that perpetrators can no longer get away with such disgraceful behaviour. Behaviour between consenting parties will not be criminalised. Instead, victims will be enabled to take a stand against privacy abuse.”
The new legislation makes it an offence to threaten to record or distribute intimate images, providing victims with additional protection against controlling or coercive behaviour which can occur in abusive relationships. If an offender fails to take reasonable action to ‘take down’ the material, they could face an additional two-year jail sentence and a $5,500 fine. The legislation also gives the courts the power to issue ‘take down’ notices.
One of Australia’s leading experts in sexual violence, Dr Nicola Henry of RMIT University, said:
The NSW legislation is an excellent model that can serve as an inspiration for other jurisdictions both in Australia and internationally.”
Australian Capital Territory
Last week, the ACT passed legislation modelled on Victorian legislation criminalising the sharing of intimate images without consent, but including an exception for persons under the age of 18 years.
Western Australia
Western Australia has opted for a civil approach and made changes to allow victims of image-based abuse to seek a family violence restraining order.
Widespread image-based abuse in Australia
All this comes as new research by RMIT and Monash University indicates that one in five Australians has suffered image-based abuse. Researchers surveyed 4200 Australians and found that the abuse covered more behaviours than expected.
This isn’t just about ‘revenge porn’ – images are being used to control, abuse and humiliate people in ways that go well beyond the ‘relationship gone sour’ scenario,” Chief Investigator, Dr Nicola Henry said.
In the RMIT report, the following statistics highlight the full extent of the problem: one in three people aged 16 to 19 years, and one in four aged 20 to 29 years, reported at least one form of image victimisation. 22 per cent of women and 23 per cent of men, were equally likely to be victimised. 56 per cent of people with a disability and 50 per cent of Indigenous Australians have been victims of image-based abuse. People who identify as lesbian, gay or bisexual were more likely to be victims (36 per cent) than heterosexual people (21 per cent).
Eighty per cent of people who had experienced “sextortion” reported high levels of psychological distress, consistent with moderate to severe depression and/or anxiety disorder. 46 per cent also felt highly fearful for their safety. Moderate to severe depression and/or anxiety affected 75 per cent of victims whose images were distributed and 67 per cent of those whose images were taken without consent. Thirty-nine per cent of people whose images were distributed and 28 per cent of those whose images were taken without consent felt highly fearful for their safety.
The research proposed the need for law reform to address inconsistent legislation across Australia, suggesting a crime be created under federal telecommunications law.
Such federal criminal legislation would also bring Australian law in line with international standards, with the UK, Canada, New Zealand and most US states criminalising image-based abuse.
The UK has also put in place a helpline for victims.
So why only a civil penalties scheme?
The federal Government has said that the proposed civil scheme is a result of feedback from victims and the organisations that assist them. Criminal proceedings are thought to be too slow to provide victims with remedies. Minister for Women, Michaelia Cash, said in November when announcing consideration of a civil penalties scheme:
Many of them say to you, ‘All I wanted was the image removed, I just wanted the image removed’”
A civil scheme would allow the eSafety Commissioner to investigate sites that are displaying intimate images obtained without a victim’s consent rather than just punishing the offender.
However, a civil penalty scheme would fail to address inconsistent revenge porn legislation across Australia. Many submissions to the Senate inquiry have suggested that federal legislation is needed to address different jurisdictional approaches.
At a meeting of Attorney Generals in May this year, a national statement of principles was agreed to assist in creating a consistent criminal and civil legislative framework. The principles provide guidance on the scope of any criminal offences as well as addressing the issues of consent and harm to the victim.
Impact on victims
In most cases, image-based abuse causes serious and ongoing psychological trauma to victims and their immediate family and friends.
After ending a relationship, a Western Australian woman’s ex-partner posted a number of intimate images and videos to his Facebook account that had been taken over the course of their relationship. The intention was to inflict mental harm, distress, humiliation, loss of self-esteem and embarrassment as a result of her decision to end the relationship. He went on to taunt her through text messages about his uploads and eventually removed the post 7 hours after first publishing it.
The incident occurred in August 2013 but the final hearing did not take place until January 2015.
The victim, in this case, sued for breach of confidence, an equitable doctrine. Due to the psychological trauma suffered, she was not able to return to work for 10 weeks and lost $13,000 in wages. The court, in this case, awarded $13,000 in lost wages and an additional $35,000 in damages for pain and suffering.
The victim also obtained an injunction preventing the potential future distribution of intimate images.
Almost 2 years after the incident, the perpetrator was required to pay $48,000. While this example is a good civil outcome, it certainly hasn’t slowed the explosion of revenge porn in Australia or acted as a deterrent to other perpetrators who maliciously post intimate images of others online without their consent.
This is why consistent federal criminal legislation that imposes serious penalties on perpetrators of revenge porn is urgently required in Australia.
Criminal v civil offences
When it comes to the dissemination of intimate images of another person without their permission, there are benefits and drawbacks associated with civil or criminal penalties.
Some argue that given the far-reaching, destructive and deeply personal impact revenge porn has on victims, that many do not make police reports. This makes criminal prosecutions difficult for law enforcement to pursue. On the other hand, civil litigation can be a drawn out, costly and traumatic exercise for victims. At best, the only remedies a victim can expect from a civil suit are damages and perhaps an injunction preventing further distribution of their intimate pictures.
Conclusion
Our current approach to revenge porn sees state laws working at a different pace to federal legislation. Regardless of what scheme achieves the best outcome for victims of this disgusting and spiteful behaviour, the inconsistency of Australia’s revenge porn legislation is the first issue that needs to be addressed to curb this widespread problem.
Further Information
If you, or someone you know, is a victim of revenge porn contact:
- eSafety Commissioner
- Australian Cybercrime Online Reporting Network (ACORN)
- Local police assistance line: 131444
- National Counselling Helpline: 1800 737 732 (for assistance and practical strategies on how to cope with the ongoing effects of revenge porn)
