Legislating Against Revenge Pornography: Call for Uniform Laws
Friday 28 April 2017 @ 1.50 p.m. | Crime | IP & Media | Legal Research
Reponses to the passing of Carly’s Law, a law designed to protect minors from misuse of carriage services, centre on a need to overhaul Australia’s approach to image-based sexual crimes. Specifically, it is the use of a carriage service to share explicit images which has been the subject of much debate, colloquially referred to in the media as ‘revenge porn’. Australia’s current approach to revenge porn is piecemeal, leaving children and adult victims vulnerable.
Current approach
The current approach to prosecuting such offences is through telecommunications offences in the Criminal Code Act 1995 [CTH]. For example, the relevant legislation to protect child victims of image-based offences is:
- s.474.19(1): to access or distribute child pornography
- s.474.26(1)–using a carriage service to procure a person under 16 years of age person under 16 years of age
- s.474.27A (1) – using a carriage service to send indecent communication or images to a person under 16 years of age.
- s.474.17– using a carriage service to menace, harass or cause offence.
Apart from the Criminal Code, image-based sex crimes vary from state to state. In Victoria for example, the maximum penalty is two years imprisonment, and in Western Australia, an offence may be punishable by a fine up to 10,000 or two years imprisonment.
The Federal Government will be introducing a civil penalties scheme for revenge porn victims. Last year, the Minister for Women Michaela Cash said:
"Many of them say to you, 'All I wanted was the image removed.’
The civil penalties are part of a wider reform which also focuses on education and community awareness. The Government’s approach is based on the fact that criminal jurisdiction can be too slow for some victims, and criminal action can also be found to be too distressing. In order to expand image-based sex crimes to adult victims, the government also proposed an overhaul to the Office of the Children's E-Safety Commissioner, renaming it the E-Safety Office.
Case study – Wilson v Ferguson [2015] WASC 15
Wilson is a case where the plaintiff was successful in suing the defendant for breaches of equitable obligation towards the plaintiff, an unauthorised disclosure. In that case, the court used injunction as a remedy, but noted that there could be no compensation for the plaintiff’s suffering of non-economic loss. The court recommended that the doctrine be developed further in relation to image-based crimes.
Relevance to children
The Children’s E-Safety Commissioner website provides a point of assistance for children who have been the victim of cybercrime or image-based sex crimes. However, it may be an issue that there are enough laws to prosecute the cases, but police are reluctant to prosecute them unless there is proof of a presently existing threat. There are concerns that the existing framework of laws criminalise teenagers for risky behaviour, where the legislation is actually designed to protect them from online predators.
The NSW legislative Council Parliamentary Committee found in March 2016 that the protections for children, who shared images of themselves to other children, were inadequate. Women’s Legal Services noted:
"Many of the photos being sent by young girls are ‘selfies’ where they have sent sexually explicit photos of themselves to others. Where this is the case, they themselves could be charged with an offence such as producing or disseminating child abuse material or distributing child pornography material."
Committee recommendations
The Parliamentary Committee's 2016 inquiry found there was a need for tighter legislation regarding the issue of image-based sex crimes. The Committee recommended the inclusion of a tort offence which would allow victims to sue for breaches of privacy. It also recommended that local courts’ powers be expanded in relation to such images, and magistrates be allowed to issue ‘take down’ powers.
Opposition response
Earlier this month, Labor MP Terri Butler argued that the government should try to codify revenge pornography laws in order to protect women and children, as both crimes involved an element of coercion. Greens MLC David Shoebridge, who was on the parliamentary committee last year, supported the inclusion of the tort offence, highlighting:
"The current law provides no effective remedy for people who have their digital identity, their personal details, spread across the internet because a negligent government or corporation has failed to keep their data secure."
NSW is moving towards criminalisation of specific offences of this kind, which follows in the footsteps of Western Australia and Victoria. However legislative change must also be accompanied by community awareness and education campaigns into the future.
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Sources:
Criminal Code Act 1995 (CTH), sourced through LawOne.
NSW Legislative Council Standing Committee on Law and Justice, 'Remedies for the serious invasion of privacy in New South Wales.' Report No. 57, Sydney NSW, 3 March 2016.
Federal Political Editor, 'Tough new laws across Australia through Turnbull Government crackdown on revenge porn.' The Herald-Sun, 23 November 2016.
Karen Barlow, 'After Carly's Law, Labor Says It's Now Time To Move On Revenge Porn.' Huffington Post Australia, 3 March 2017.
AAP, 'NSW govt to consider 'revenge porn' laws.' The Australian, November 2016.
Naomi Woodley and Josie Taylor, 'Revenge porn civil penalties considered by Government to give victims faster access to justice.' ABC Online, 23 November 2016.
