Proposed CTH Legislation Targets Non-Consensual Online Sharing of Intimate Images

“According to a report published in May 2017 by the Royal Melbourne Institute of Technology University, 1 in 5 Australians, 1 in 2 Australians with a disability and 1 in 2 Indigenous Australians have experienced the non-consensual sharing of intimate images. The psychological impact on victims can be significant, and negative implications (whether perceived or actual) can affect their reputation, family, employment, social relationships and even personal safety.

While the non-consensual sharing of intimate images can often occur as a result of the ex-partner of a victim distributing images of the victim for the purposes of seeking revenge, it can also involve acquaintances or complete strangers distributing the images. The practice is generally intended to cause harm, distress, humiliation and embarrassment, whether through the actual sharing and distribution of intimate images, or the threat to share, often in an attempt to control, blackmail, coerce or punish a victim (commonly referred to as ‘sextortion’). Other motives might include sexual gratification, fun, social notoriety and/or financial gain.”

“This consultation is seeking views on:

a) how a proposed civil penalty regime might best complement existing regulation and other initiatives, and how it might be framed;

b) the expansion of the role of the Commissioner to administer the new scheme, and how the Commissioner might enforce the civil penalty regime; and

c) definitions of key terms and behaviours. Views are not being sought on the effectiveness or operation of existing criminal offences, but rather on the proposed civil penalty regime that will complement them.”

“The Bill will amend the Enhancing Online Safety Act 2015 (the Online Safety Act) to establish a civil penalty regime for the non-consensual sharing of intimate images. The Bill will:

• Prohibit the posting, or threatening to post, of an intimate image without consent on a social media service, relevant electronic service, or a designated internet service.
• Establish a complaints and objections system in relation to the non-consensual sharing of intimate images to be administered by the eSafety Commissioner (the Commissioner).
• Provide the Commissioner with powers to issue a removal notice requiring endusers, hosting service providers, or providers of a social media service, relevant electronic service or designated internet service, to remove an intimate image from a service.
• Provide the Commissioner with the power to give a person a remedial direction, directed towards ensuring the person does not contravene the prohibition on the non-consensual sharing of intimate images.
• Establish a civil penalty regime giving the Commissioner the discretion to take enforcement action under various Parts of the Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory Powers Act) if there has been a contravention of the prohibition on the non-consensual sharing of an intimate image or a remedial direction, or a failure to comply with a removal notice.
• Allow the Commissioner to seek a civil penalty order, issue an infringement notice, obtain an injunction or enforce an undertaking under the Regulatory Powers Act, or issue a formal warning under the Online Safety Act for contraventions of the civil penalty provisions.

The term ‘non-consensual sharing of intimate images’ refers to the sharing or distribution by a social media service, relevant electronic service, or designated internet service of an image or video of a person or persons portrayed in a sexual or otherwise intimate manner, which has been shared without consent. This content might or might not have been obtained with the consent of the person depicted in the image or video. It is colloquially known as ‘revenge porn’ and commonly referred to as ‘image-based abuse’.”

"(a)     a person who posts, or threatens to post, an intimate image may be liable to a civil penalty;

(b)     the provider of a social media service, relevant electronic service or designated internet service may be given a notice (a removal notice) requiring the provider to remove an intimate image from the service;

(c)     an end‑user of a social media service, relevant electronic service or designated internet service who posts an intimate image on the service may be given a notice (a removal notice) requiring the end‑user to remove the image from the service;

(d)     a hosting service provider who hosts an intimate image may be given a notice (a removal notice) requiring the provider to cease hosting the image."

• A person who posts, or threatens to post, an intimate image without the consent of the person depicted in the image may be liable to a civil penalty.
• The provider of a social media service, relevant electronic service or designated internet service may be given a notice (a removal notice) requiring the provider to remove an intimate image from the service.
• An end‑user of a social media service, relevant electronic service or designated internet service who posts an intimate image on the service may be given a notice (a removal notice) requiring the end‑user to remove the image from the service.
• A hosting service provider who hosts an intimate image may be given a notice (a removal notice) requiring the provider to cease hosting the image.”