An opportunity has finally arrived for the Australian Parliament to debate proposed legislation that would criminalise the phenomenon of so-called ‘revenge porn’. The rapid development of instantaneous communication technology and increased reporting of revenge porn incidents in Australian media, have intensified calls for the government to criminalise the distribution of intimate and/or sexually explicit images and videos of individuals without their consent.
The Criminal Code Amendment (Private Sexual material) Bill 2015 would amend the Criminal Code 1995 (Cth) to introduce new telecommunications offences. It marks the first serious attempt at the federal level to criminalise the rising phenomenon of revenge porn. It was introduced as a private members bill on 12 October 2015 by Labor MP Tim Watts and co-sponsored by fellow Labor MP Terri Butler.
The bill proposes an offence of sharing ‘private sexual material’, including videos or imagery, without the consent of those depicted. Those found guilty of this offence will be liable for up to three years in jail. The fault element for the offence is intent, including recklessness as defined in the Criminal Code 1995 (Cth).
The proposed law would apply to images or film clips posted on websites, or distributed via SMS, email and social media. The Explanatory Memorandum to the bill explains that ‘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’. Individuals who operate online platforms that advocate the practice of revenge porn will also face prosecution.
The bill includes several exemptions including for law enforcement officials and journalists who can prove that distributing the material is of public benefit. People who make pornography specifically for distribution, or the creation and dissemination of anatomical imagery intended for medical training and use, are also exempted under the bill.
There are limited options for legal redress in Australia where a person is the victim of revenge porn. There is no specific criminal offence of sharing private, sexual videos or imagery without the consent of the other party in federal law. There is, however, a federal offence in section 474. 17 of the Criminal Code (Cth) to menace, harass or cause offence by use of a carriage service. This provision has been used to prosecute individuals who post ‘offensive’ images or threats on facebook. Victoria is the only Australian state or territory to have legislated to criminalise the malicious distribution, or threat of distribution, of intimate images without a person’s consent under sections 41DA and 41DB of the Summary Offences Act 1966 (Vic).
There are stalking offences in most states and territories, as well as a federal data protection Act, the Privacy Act 1988 (Cth). However this Act is designed to protect individuals from data breaches by large companies (those which earn over AUD$3 million p.a.) and government departments, not from privacy breaches deliberately caused by former or current intimate partners.
Furthermore, there is limited protection offered by the common law or at equity. Australia does not have a tort of harassment or a tort of invasion of privacy. Despite the High Court of Australia suggesting the possible development of a tort of misuse of personal information from the existing equitable action for breach of confidence in Australian Broadcasting Corporation v Lenah Game Meats (2001) 208 CLR 199, this has not eventuated beyond some lower court judgments that were settled before being appealed (see, for example, Giller v Procopets [2004] VSC 113). Moreover, Australian courts cannot award equitable compensation for emotional distress.
Australia is largely out of step with developments around the world. Several foreign jurisdictions, including the UK, the Philippines, Canada, Japan, Israel and more than a dozen US states including California have legislated to criminalise revenge porn. Here in the UK, it is an offence under section 33 of the Criminal Justice and Courts Act 2015 (UK) to disclose private sexual photographs and films without the consent of the individual involved, and where there is an intent to cause distress to that individual.
Over the past ten years, there have been numerous recommendations by Australian law reform commissions – both state and federal – as well as state parliamentary inquiries, in favour of the introduction of a statutory privacy cause of action that would provide civil redress for the victims of revenge porn. Many of these bodies also recommended the introduction of criminal offences for similar conduct.
Privacy and online harassment is an area of law undergoing some change in Australia, with movements such as the creation of the Office of the Children’s eSafety Commissioner in 2014. The Commissioner can hear complaints brought by minors concerning ‘offensive’ online content uploaded or distributed by other minors. Offensive content in this context extends to private and/or sexually explicit images.
The Liberal Turnbull Government has not yet indicated how it will receive the private members bill. The bill has received some, albeit limited, cross-bench support from Government MPs including Karen McNamara MP. Whether there is any appetite for change in the legal landscape will, inevitably, depend on political.
Brigit Morris was a legal officer at the Australian Law Reform Commission and worked on its 2014 inquiry into Serious Invasions of Privacy in the Digital Era. Brigit is currently a Masters student at King’s College London.
Leave a Reply