Today the Office of the eSafety Commissioner has announced that Australia will be one of four countries participating in a limited global pilot with Facebook designed to help prevent intimate images of Australians being posted and shared across Facebook, Messenger, Facebook Groups and Instagram.

The pilot provides a portal for people concerned that an intimate image may be shared online to report it to the Office of the eSafety Commissioner who will notify Facebook to prevent any instances of the image being uploaded after the notification has been actioned.

The Office of the eSafety Commissioner is the only Australian Government agency taking part in this important pilot, which was borne from a Global Working Group established by Facebook to engage governments and businesses on keeping people safe online.

Julie Inman Grant, eSafety Commissioner says:

We’ve been participating in the Global Working Group to identify new solutions to keep people safe, and we’re proud to partner with Facebook on this important initiative as it aims to empower Australians to stop image-based abuse in its tracks,”

This pilot has the potential to disable the control and power perpetrators hold over victims, particularly in cases of ex-partner retribution and sextortion, and the subsequent harm that could come to them,” says Julie Inman Grant.

This partnership gives Australians a unique opportunity to proactively inoculate themselves from future image-based abuse by coming to our portal and reporting tool,” adds Inman Grant.

Facebook’s Head of Global Safety, Antigone Davis, said the pilot is an industry first and builds on the non-consensual intimate images tool announced by Facebook in April that uses cutting-edge technology to prevent the re-sharing on images on its platforms.

As part of our continued efforts to better detect and remove content that violates our community standards, we’re using image matching technology to prevent non-consensual intimate images from being shared on Facebook, Instagram, Facebook Groups and Messenger.”

The US, UK and Canada are also participating in the pilot with Facebook.

Further Information

If you, or someone you know, is a victim of revenge porn, visit:

• 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)

More on BucketOrange Magazine:

• World First Online Help Portal For Victims Of Revenge Porn Launches Today
• Are There Laws To Protect Against ‘Revenge Porn’ In Australia? It Depends Where You Live
• Should It Be Considered A Sex Crime If It Happened Online? The Pathology Of Revenge Porn
• Google Removes Revenge Porn From Search Results
• Time For Reform: A Growing Need For Proper Regulation Of Online Sexual Harassment

Today, Australians who have had intimate images or videos shared without their consent (known as ‘revenge porn’) will be able to access tangible support and advice, including legal assistance, through an online portal piloted by the Office of the eSafety Commissioner. The portal will also run a complaints service for young Australians who experience cyberbullying and will address illegal content online.

Research released by the eSafety Office has revealed that as many as 1 in 5 for women aged 18-45, and 1 in 4 for Indigenous Australians have experienced image-based abuse.

This is a world-first government-led initiative, empowering Australians who experience this insidious form of abuse with practical information and a range of options to help resolve their situation and relieve their distress,” says eSafety Commissioner Julie Inman Grant.

The research shows that intimate images were most commonly shared without consent on popular social media sites. Facebook/Messenger accounted for 53%, followed by Snapchat at 11% and then Instagram at 4%. Text messaging and MMS are other common distribution channels.

Australians will be able to report intimate images or videos that have been shared without their consent directly through to our portal. We will work with social media providers, websites and search engines to help facilitate the removal of the image-based abuse,” says Ms Inman Grant.

During the pilot phase, the Office of the eSafety Commissioner will be working closely with victims and stakeholders to determine the volume and complexity of reports and to develop final features of the portal which will launch formally in early 2018.

Further Information

For more information visit the Office of the eSafety Commissioner website.

More on BucketOrange Magazine

• Are There Laws To Protect Against ‘Revenge Porn’ In Australia? It Depends Where You Live
• Time For Reform: A Growing Need For Proper Regulation Of Online Sexual Harassment

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)

More on BucketOrange Magazine

• Should It Be Considered A Sex Crime If It Happened Online? The Pathology Of Revenge Porn
• Google Removes Revenge Porn From Search Results
• Time For Reform: A Growing Need For Proper Regulation Of Online Sexual Harassment

Following the increased frequency and severity of revenge porn attacks in Australia, intensifying community rhetoric concerning the inadequate state of criminal legislation to deal specifically with the revenge porn problem, as well as other troubling incidents involving the use of technology to breach the privacy of individuals, (for example, the Sydney nurse who took explicit photos of a patient under anaesthetic), new legislation that would make it a Federal crime to distribute sexually explicit images of a person online without their consent has been introduced into Parliament.

What Are The Proposed Changes?

The Bill to amend the Criminal Code Act 1995 (Cth) would introduce three new telecommunications offences.

While there are existing provisions in the Commonwealth Telecommunications Act that go some way towards addressing this issue, current legislation has not kept pace with technological developments, and does not adequately protect individuals against the escalating problem concerning breaches of privacy that are carried out using technology.

The proposed Bill contains important new offences that will prescribe appropriate penalties for persons involved in image-based sexual exploitation, known as revenge porn. The offences reflect the community’s increased use of telecommunications to engage in harmful and abusive behaviour of a sexual nature and the harm that can be caused.

The proposed offences prohibiting revenge porn focus on the use offenders make of technological tools to engage in sexual exploitation. The offences are designed to respond to the harm that is caused to a person that has their private sexual material shared without their consent.

The proposed new laws will make it an offence for a person to transmit, make available, publish, distribute, advertise or promote private sexual material.

It will also be an offence for a person to:

1.  threaten to transmit, make available, publish, distribute, advertise or promote private sexual material;
2. possess, control, produce, supply or obtain private sexual material, for a commercial purpose or for the purpose of obtaining a benefit. This would encompass popular revenge porn websites.

The proposed offences are particularly aimed at the use of the Internet, email, SMS and other online applications or technological tools to engage in revenge porn.

What Constitutes Private Sexual Material?

The proposed definition of private sexual material has been drafted broadly not only to encompass the range of possible exploitative scenarios that legislators can currently predict but also, importantly, to cover future scenarios they cannot currently foreshadow.

The definition includes sexually explicit or nude images of women, men, transgender or intersex persons, as well as sexual poses or sexual activity.

The proposed new laws also encompasses different cultural contexts, such as an image of a Muslim woman without her religious headscarf on.

If You Have Been The Victim Of A Revenge Porn Attack, What Do These Changes Mean For You?

If the Bill is passed by both houses of Parliament and made into Australian legislation, it will be a Federal crime to use technology to distribute sexually explicit images of an individual without their consent.

This is good news for victims, and much needed protection, against future revenge porn attacks.

It means that regardless of which State or Territory a revenge porn offence is carried out in, it will be possible for you to report the crime to police and for offenders to be prosecuted under Federal legislation.

The maximum penalty  for the proposed offence is 3 years’ imprisonment, reflecting the seriousness of this type of conduct. The penalty for commercial use of sexually explicit materials is 5 years’ imprisonment, due to the aggravated circumstances surrounding this offence.

Conclusion

If you or someone you know has been the victim of revenge porn contact:

• 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)

For practical strategies on how to deal with the immediate aftermath of a revenge porn, read our previous article here.

To read more about the Criminal Code Amendment (Private Sexual Material) Bill 2015 you can read the Explanatory Memorandum.  You can also track the progress of the Bill through Parliament by clicking here.

UPDATE: After a recent spate of revenge porn attacks against hundreds of South Australian women on American website 4Chan (an image-based bulletin board where anyone can post pictures anonymously), Australian legislators are coming under increasing pressure to tighten legislation on revenge pornography.

Many countries have taken positive action to curb its proliferation. In February this year, a man was arrested in Japan under new revenge porn laws for scattering nude photos of his girl friend in a car park.

Canada has also legislated against revenge porn. The distribution of intimate images without the consent of the subject can result in several years imprisonment. New Zealand is considering amendments to its Privacy Act that would allow victims up to $200,000 compensation, while the UK has introduced legislation that criminalises malicious distribution of explicit images without consent of the victim with a penalty of 2 years imprisonment. 17 states in the United States have also made revenge pornography legislation in some form.

Google’s new policy

In an unprecedented move announced on Friday, Google has weighed into the growing problem by announcing that it will now remove revenge porn images from its search results.

In the next few weeks, Google will provide a form allowing individuals to request naked or sexually explicit images of themselves to be removed from search results, where they did not consent to their publication.

Google joins Twitter who has updated its terms of service to ban the distribution of revenge porn.

Australian laws need to be strengthened in line with international standards, and perpetrators must be prosecuted, if any real action is to be taken to stop the proliferation of online sexual attacks and revenge pornography crimes on the internet.

While it is not a complete solution, Google’s move to limit public accessibility of revenge porn in its search results is a definitely step in the right direction.

Further information:

If you or someone you know has been the victim of revenge porn contact:

• 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) or

For practical strategies on how to deal revenge porn, read our previous post here.

The breakdown of any relationship is a traumatic experience.

But what if the person you once trusted intentionally reposted intimate pictures or videos of you without your consent? The misuse of technology as an emergent tool of degradation and punishment has become alarmingly common in Australia.

It’s a devious and perverted form of post-breakup warfare that is being waged online.

This is the dark and insidious world of revenge porn.

History and pathology

It began in a relatively isolated way. Several websites, mainly US-based publications, popped up to cater for malicious reposting with an ever-growing community of actively engaged users supplying sexually explicit content to site administrators.

In the last few years the revenge porn business has boomed. Photos are usually sent in by spurned ex-partners (mostly men) seeking an avenue for revenge against former girlfriends. Many images posted on specially dedicated sites specify the victim’s full name and are linked to social media profiles. Some go as far as including personal details such as employer information. In other cases, sexually explicit images are posted on social media or emailed to friends, family or even work colleagues without the knowledge or consent of the victim.

The intention is to humiliate, harass or blackmail.

Widespread use of social media and smart phones among young people who capture selfies for the purpose of ‘sexting’ has paved the way for the actions of few to easily spiral out of control. ‘One click’ access and publication of personal information on social media has, perhaps, groomed an entire generation to accept abuse of information as the new norm. What was once reserved exclusively for the private domain has now become part of an increasingly private ‘public dialogue.’

More than ever, the internet is providing ill-intentioned perpetrators with a dangerous platform to not only air grievances but also to find a similarly-inclined audience.

The rapid proliferation of this form of sexual exploitation has occurred for two main reasons:

1. ease of publication; and
2. lack of accountability.

As a growing practice, this unconstrained freedom to publish explicit media has, and continues, to go largely unchecked.

The trend has given rise to a problem that has not been faced by any other generation – and the results can be devastating.

Impact on victim

Unlike other forms of abuse, revenge porn involves no physical harm to the victim.

The emotional and psychological toll can, however, closely mirror the impact of a sex crime. The victim is left feeling helpless, violated, humiliated and without recourse. In some reported cases, intimate images are used to manipulate and blackmail current partners within the context of a domestic violence situation.

In the past, victims of sexually explicit photo hacks have experienced harsh public backlash. Disney star Vanessa Hudgens, for example, made a public apology after explicit photos surfaced on the internet. Nowadays, victims (particularly celebrities) of photo hacks are calling attention to revenge porn and online photo attacks for what they truly are – a sex crime. A changing mainstream media dialogue spearheaded in large part by Jennifer Lawrence following a nude photo hack late last year now rightfully redirects blame, attention and shame to the shoulders of the perpetrator.

State of the law in Australia – Is it doing enough?

Like most countries, Australia has no laws specifically designed to combat revenge porn or malicious reposting. Current privacy laws deal mainly with abuse by corporations or government bodies but mention nothing about breaches made by private individuals. State and territory criminal laws, on the other hand, deal with physical assault rather than virtual behaviour that causes similar and serious and ongoing psychological harm.

Victoria is leading the charge against revenge porn in Australia by amending existing sexting laws. Recently passed legislation makes it a criminal offence to distribute, or threaten to distribute, intimate images or videos of a person without consent.

In a Federal context, the Commonwealth Criminal Code 1995 makes it an offence to use the internet to menace, harass or offend. As a broad spectrum law, it has been used to prosecute cases of cyber bullying. Some commentators argue that it may be used to prosecute perpetrators of revenge porn. However, as a newly emerging area of cybercrime there is no legal precedent and no criminal prosecutions that have used this legislation to date.

This is not the first time the law has lagged.

When it comes to the rapidly-evolving area of cyber crime, the actions of individuals often overtake the ability of policy makers and legislators to keep pace. From the Silk Road online black market used for the sale of illegal drugs to other deep web and darknet services, there is no shortage of ways for extremest groups, child pornographers or illegal goods distributors to engage in untraceable illegal activity hidden from relevant authorities.

The UK and several states in the US have now regulated against revenge porn. In the UK it is now an offence punishable by up to 2 years imprisonment.

What if it happens to you, or someone you know?

If you become aware of a picture that has been published online without your consent, move quickly! The longer your images are online, the more people will see them and the further they are likely to spread. Taking immediate action is the best way to ensure that the pictures are removed successfully.

1. Report the crime to local police;
2. If the picture has been posted on social media, report the abuse through appropriate channels immediately and request that the image is removed;
3. If the images have been posted on social media, depending on the nature of your relationship with the perpetrator, you may wish to contact him/her directly to request the pictures are taken down. Sometimes the most effective strategy is the simplest: appealing to a person’s better nature may well produce the outcome you seek without the need to pursue further action;
4. If the picture has been posted on a specially dedicated revenge porn website, however, contact the site’s administrator and request the picture is removed;
5. Seek advice from a lawyer who specialises in cyber crime.

Some suggested wording you may wish to consider using when requesting the removal of an image:

Dear [insert name of site administrator]

I have recently become aware of explicit images of myself that have been posted on your website without my knowledge or consent.

I am writing to request the immediate removal of these images.

If my images are not removed within 24 hours I will be forced to report your website to the authorities and to pursue legal action.

Thank you

Regards

[insert your name]

Another possible legal avenue could involve suing website owners for breach of copyright under civil Copyright Protection laws. Copyright protection in Australia is automatic as soon as an image is captured.

This means that if  you took the explicit image yourself, it belongs to you.

Virtual reality

A good defence is the best offence.

Be mindful of the information you share. Abuse – whether virtual or physical – almost always happens at a time and in a way that we cannot anticipate.

Report any online attack immediately and talk about it with friends and family.

The only outcome to be achieved by remaining silent is to allow the perpetrator to win.

Have you or anyone you know been victimised by revenge porn? Do you think legislation should punish perpetrators of online assaults in the same way as other sex crimes? Let us know what you think in the comments section below!

Further information

If you or someone you know has been the victim of revenge porn contact:

• 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) or
• To explore a remedy for copyright infringement seek advice from a copyright lawyer.