Discussion Paper Released On Proposed Commonwealth Civil Penalty Regime for Non-Consensual Sharing of Intimate Images

The Commonwealth Government has released a discussion paper on the introduction of a civil penalty regime for non-consensual sharing of intimate images.  The paper sets out the proposed details of the civil penalty regime, including possible information gathering powers and enforcement mechanisms.  The Government foreshadowed the release of the paper in an announcement made last year by Minister for Women Michaelia Cash, who told ABC News that the criminal process could be too slow for victims, who were often more concerned with whether the image could be removed.

The discussion paper notes that “[t]he non-consensual sharing of intimate images is of increasing concern for policymakers globally.”  It cities the “Digital Harassment and Abuse of Adult Australians” research project undertaken by the Royal Melbourne Institute of Technology (RMIT) and La Trobe University, which found that “one in 10 adults surveyed reported that a nude or semi-nude picture of themselves had been posted online or sent to others without their consent.”

The Proposed Prohibition

The discussion paper suggests the prohibition could be framed as follows:

Issues for consideration include whether there are options for an alternative framing of the prohibition, and whether there needs to be an “Australian link” (e.g. whether the person sharing the image, the subject of the image or the contest host is Australian or based in Australia).

Civil Penalty Regime

The discussion paper suggests that the regime could involve a number of enforcement measures, including civil penalties, enforceable undertakings, injunctions, infringement notices, formal warnings and take down notices.

The discussion paper suggests that the regime could be administered by the Children’s eSafety Commissioner.  Currently, Federal Parliament is considering a Bill that would expand the role of the Commissioner to e-Safety more generally (the Enhancing Online Safety for Children Amendment Bill 2017 – see TimeBase’s earlier article for more information).

Key issues for consideration include whether different steps should be taken when an image is taken of a minor or shared by a minor, and whether there should be a hierarchy of penalties

Information Gathering Powers

The discussion paper also asks what information gathering powers should be made available to the Commissioner, suggesting as a possibility that the Commissioner could have powers similar to that of the Australian Communications and Media Authority (ACMA) under the Telecommunications Act 1997  (Cth).  The ACMA may require a carrier or a service provider to provide information or produce documents relevant to the exercise of its powers.

Key Terms

The discussion paper also includes discussion of the terms that may be used in the legislation, such as “consent”, “intimate image”, “sharing”, “electronic service” and “ social media service”, each of which play a crucial part in determining the scope of the civil penalty regime.

Public submissions on the discussion paper and proposed civil penalty regime are open until 30 June 2017.

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Discussion Paper: Civil penalties regime for non-consensual sharing of intimate images (Department of Communications and the Arts, Commonwealth Government, May 2017)