Bill Prohibiting Non-consensual Sharing of Intimate Images Passes Senate

Friday 16 February 2018 @ 9.33 a.m. | Crime | Legal Research

The Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2017 (Cth) (the Bill) has now passed the Senate, with amendments, on 14 February 2018.  The Bill aims to implement the Australian Government’s commitment to introducing a civil penalty regime to combat the non-consensual sharing of intimate images.

The Bill was initially introduced to the Senate on 6 December 2017, by the Hon James McGrath, and proposes to amend the Broadcasting Services Act 1992 (Cth) and Enhancing Online Safety Act 2015 (Cth).

Background to the Bill

In November 2016 the Government consulted on a proposed civil penalty regime targeted at perpetrators, social media services and website/content hosts which share intimate images without consent. The public consultation process included a cross-section of stakeholders including the Australian Federal Police, women’s safety organisations, mental health experts, schools and education departments, victims, and the Government’s Online Safety Consultative Working Group.

The Bill’s Explanatory Memorandum (EM), indicates the Bill will:

“… send a clear message to the community that the sharing of intimate images without consent is not an acceptable practice. The Bill will facilitate the quick removal of images without causing additional distress to the victim. It will complement existing Commonwealth, state and territory criminal laws and the online complaints portal pilot which was launched by the Office of the eSafety Commissioner on 16 October 2017.”

The Need for Government Action

In the Bill’s Second Reading Speech [Senate] of 6 December 2017, the need for strengthening of current laws was discussed [see page 81]:

“… This issue is a global concern with many countries taking targeted action against this unacceptable practice. The Government recognises that the sharing of intimate images without consent is also an emerging issue of great concern here in Australia.”

and further:

“… Previously, the impacts of intimate image distribution were limited by the restrictions of the physical world. However, as noted by academics from Bond University, 'as a result of movement to the digital world, globalisation and society's reliance on technology, many more of our lifestyle activities are conducted in the digital world'.”

The Current Laws

Currently, there are existing criminal offence provisions available in relation to the non-consensual sharing of intimate images at both the Commonwealth and State level. Under Commonwealth law it is an offence to use a carriage service in a menacing, harassing or offensive way (see s 474 of the Criminal Code Act 1995 (Cth)).

Many Australian states have already criminalised the use of using a carriage service for menacing behaviour, with NT and Queensland also indicating their intentions to introduce specific criminal offences for this type of behaviour.

The Proposed Amendments

The proposed amendments contained in the Bill will:

  • prohibit the non-consensual posting of, or threatening to post, an intimate image on a social media service, relevant electronic service, for example: e-mail and SMS/MMS, or a designated internet service, which include websites and peer to peer file services;
  • establish a complaints and objections system to be administered by the Commissioner where victims (or a person authorised on behalf of a victim) will be able to lodge a complaint directly to the Commissioner where there is reason to believe that an intimate image has been posted or threatened to be posted without consent;
  • facilitate the removal of an image where a person initially consented to an image being posted and then changed their mind and now wishes to have the image removed; and
  • introduce a civil penalty regime to be administered by the Commissioner, with the Bill to  trigger the Regulatory Powers (Standard Provisions) Act 2014  and allow the Commissioner to utilise a series of graduated responses to address this issue.

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Sources:

Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2017 (Cth) - Bill and supporting information available from TimeBase LawOne Service. 

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