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Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2018

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2016-2017-2018

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

 

 

ENHANCING ONLINE SAFETY (NON-CONSENSUAL SHARING OF INTIMATE IMAGES) BILL 2018

 

 

 

 

REVISED EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Communications,

the Honourable Mitch Fifield)

 

 

THIS EXPLANATORY MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE SENATE TO THE BILL AS INTRODUCED

 



 

ENHANCING ONLINE SAFETY (NON-CONSENSUAL SHARING OF INTIMATE IMAGES) BILL 2018

OUTLINE

The Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2018 (the Bill) will amend the Enhancing Online Safety Act 2015 (Online Safety Act) to implement the Australian Government’s commitment to introduce a civil penalty regime to combat the non-consensual sharing of intimate images.  

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’.

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. [i]

In November 2016 the Government undertook to consult on a proposed civil penalty regime targeted at perpetrators, social media services and website/content hosts which share intimate images without consent. The Bill was informed by a public consultation process with 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. During the public consultation process, there was broad consensus amongst stakeholders that the primary concern of victims, is the rapid removal of the offending images.

The intent of the Bill is to 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 Government acknowledges and appreciates that the more prominent social media service providers and content hosts are working very hard to develop innovative, technological measures, or already have robust processes in place, intended to assist victims whose images have been shared without consent. As a result, victims have in the past, approached these services directly to request removal of intimate images and videos shared without consent.

The Government expects that these social media providers and content hosts will continue this good work, and the Bill will not prevent victims from approaching these services in the first instance, rather than the Office of the eSafety Commissioner, if they wish to do so. The Government also recognises the strong partnerships that social media services and content hosts have established with the Commissioner and envisages that these relationships will continue to be pivotal in protecting Australians against the non-consensual sharing of intimate images. The measures in this Bill reflect the Government’s ongoing commitment to keep Australians safe online.

The primary measures 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’, e.g. email and SMS/MMS, or a ‘designated internet service’, e.g. websites and peer to peer file services. (Item 26, proposed section 44B).

 

·          Establish a complaints and objections system to be administered by the Commissioner. 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. (Item 24, proposed section 19A).

 

·          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, by enabling them to give the Commissioner an ‘objection notice’.

An objection notice may also be lodged on behalf of that person so long as that person has been authorised to do so.  (Item 24, proposed section 19B).

 

·          Introduce a civil penalty regime to be administered by the Commissioner. The Bill will trigger the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act) and allow the Commissioner to utilise a series of graduated responses to address this issue. These responses include issuing infringement notices, seeking a civil penalty order from a relevant court, enforceable undertakings, or seeking an injunction for contraventions of the civil penalty provisions.



·          Amendments moved in the Senate which would introduce three new criminal offences under the Criminal Code Act 1995 where it will be an offence to:

o    use a carriage service to transmit an intimate image;

o    use a carriage service to make a threat about an intimate image; or

o    possess an intimate image to use through a carriage service. (Schedule 2).

 

 



 

Removal notices

Under the Bill, the Commissioner will have the option to issue removal notices to perpetrators, social media service providers and website and content hosts. Removal notices require the intimate image be removed within 48 hours after the notice has been given, or a longer period as the Commissioner allows.

The Office of the eSafety Commissioner will seek to use established relationships with social media service providers and content hosts to facilitate the taking down of images, and thus a removal notice or other enforcement action may not be required in every case .

Definitions

The Bill introduces new definitions including ‘consent’ and ‘intimate image’.

‘Consent’ to share an intimate image must be express, voluntary and informed. ‘Consent’ cannot be provided by persons under 18 years of age. This ensures consistency with Commonwealth criminal offences around the distribution of child pornography contained in the Criminal Code Act 1995 , which applies to images depicting a person under the age of 18 in a sexual pose or sexual activity. Nor can consent be given by an adult who is in a mental or physical condition that makes the person incapable of giving consent, or substantially impairs the capacity of the person to give consent. (Item 18, proposed section 9E).

The term ‘intimate image’ refers to images or videos taken in circumstances where an ordinary reasonable person would have a reasonable expectation of privacy. These include any depiction of private parts; depiction of private activity; or depiction of person without attire of religious or cultural significance. (Item 18, proposed section 9B).

Exemptions to the prohibition

The Bill contains exemptions to the prohibition in the form of an exempt post. The sharing of an intimate image will be an exempt post where the posting of the image is considered necessary for the enforcement, monitoring compliance with or investigating a contravention of a law; for the purposes of proceedings in a court or tribunal; where the post is for genuine medical or scientific reasons; or where an ordinary reasonable person having regard to particular matters, would consider it acceptable; or where it is in relation to the performance of functions and exercise of powers by the Commissioner. (Item 26, proposed section 44M).

The Online Safety Act will also be amended to confer jurisdiction on the Federal Court of Australia, in addition to the Federal Circuit Court of Australia, as the relevant courts for provisions enforceable under the Regulatory Powers Act.  

Review of effectiveness of the Bill

The Bill contains a requirement that the Minister is to cause a review into the effectiveness of the proposed amendments within three years of the Act commencing. Additionally, the Minister must ensure that the written report of the review is tabled in each House of Parliament within 15 sitting days of the Minister receiving the report. (Clause 4).

The amendments in the Bill will come into effect the day after Royal Assent.

 

FINANCIAL IMPACT STATEMENT

The Bill might have a minor impact on Commonwealth expenditure or revenue. Any additional funding for the Office of the eSafety Commissioner to administer the provisions in this Bill will be considered in the context of the 2018-19 Budget.



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Enhancing Online Safety (Non-consensual sharing of intimate images) Bill 2018

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

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 end-users, 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 phrase ‘non-consensual sharing of intimate images’ refers to the sharing of an image or a video of a person in an intimate manner on a social media service, relevant electronic service, or designated internet service, where the sharing of the image or video was without 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’.

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 mere acquaintances or complete strangers sharing 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 a threat to share intimate images, often in an attempt to control, blackmail, coerce or punish a victim. Other motives may include sexual gratification, fun, social notoriety and/or financial gain.

Human rights implications

The Bill engages the following human rights:

·          the right to freedom of expression primarily contained in Article 19 of the International Covenant on Civil and Political Rights (the ICCPR), and also referred to in Articles 12 and 13 of the Convention on the Rights of the Child (the CROC) and Article 21 of the Convention on the Rights of Persons with Disabilities (the CRPD);

·          the prohibition on interference with privacy and attacks on reputation primarily contained in Article 17 of the ICCPR, and also referred to in Article 16 of the CROC, and Article 22 of the CRPD;

·          the right to a fair trial and fair hearing rights primarily contained in Article 14 of the ICCPR, and also referred to in Article 40 of the CROC;

·          the right to certain minimum guarantees in criminal proceedings, which are contained in Article 14(3), (5), (6) and (7) of the ICCPR;

·          the right to protection from exploitation, violence and abuse primarily contained in Article 20(2) of the ICCPR, and also referred to in Article 19(1) of the CROC and Article 16(1) of the CRPD.

These rights, and how they are engaged by the Bill, are discussed below.

Freedom of expression

The right to freedom of expression includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other any media of choice. Article 19(3) of the ICCPR explicitly states that the exercise of the right carries with it special duties and responsibilities. Accordingly, this right may be subject to certain restrictions if the restrictions are provided for by law and are necessary for the respect of the rights and reputation of others.

The Bill engages the right to freedom of expression as it prohibits the non-consensual sharing of intimate images. This policy objective is intrinsically restrictive of freedom of expression as it restricts the freedom to post or receive certain kinds of images, unless the express and free consent of the person depicted in the image is provided. Because of this, several provisions of the Bill are restrictive of freedom of expression.

The Bill provides that a person must not post, or make a threat to post, an intimate image of another person on a social media service, a relevant electronic service, or a designated internet service without consent. The prohibition applies if either the person posting the image, or the person depicted in the image, is ordinarily resident in Australia. The Bill also includes powers for the Commissioner to issue a removal notice requiring an intimate image to be removed from a social media service, relevant electronic service, or designated internet service. The Commissioner also has a power to issue a remedial direction to take action to ensure that the person does not contravene the prohibition on the non-consensual sharing of intimate images.

Notwithstanding these restrictions, the Bill is nevertheless consistent with the freedom of expression, as the restrictions are provided for by law, and are necessary for the respect of the rights and reputation of others. The protection of the privacy of persons depicted in intimate images from the non-consensual posting of those images is a legitimate objective, and the measures in the Bill are reasonable, necessary and proportionate to achieving that objective.

The restrictions will be provided for by law in primary legislation. The Online Safety Act will be amended by this Bill to include the prohibition on the non-consensual sharing of intimate images, and to include powers for the Commissioner to issue removal notices in relation to intimate images which have been posted, and remedial directions to ensure a person does not contravene the prohibition.

The restrictions are necessary to ensure the respect of the rights and reputation of others. People have a right to privacy and from attacks on their reputation under Article 17 of the ICCPR and related conventions. People also have the right to protection from exploitation, violence and abuse, as contained in Article 20(2) of the ICCPR and related conventions. At a general level, because of the sensitive and personal nature of intimate images, people expect that such images are only used for purposes for which consent was provided. This expectation is reinforced because of the serious harm that can result from the non-consensual sharing of an intimate image, and potential impacts this can have on a person’s reputation.

The non-consensual posting of an intimate image is a serious breach of a person’s right to privacy. It involves the sharing of a personal and intimate image with a person or people with whom it was not intended to be shared. Not only is this a fundamental breach of trust by the person sharing the image, it often has long lasting detrimental consequences for the person depicted in the image.

The non-consensual sharing of intimate images is often undertaken for the purposes of seeking revenge or with the intent to, and the consequence of, causing harm, distress, humiliation and embarrassment to the victim. Given the motivation, and the impact on the victim, the non-consensual sharing of an intimate image is often an act of exploitation and abuse directed towards a vulnerable person.

The posting of an intimate image without consent is also an attack on a person’s reputation. Not only does it cause harm and distress for the victim, it can also have broader impacts for the victim’s reputation. It can have far reaching consequences for the victim’s personal relationships and friendships, and may also impact a victim’s employment or other prospects which are contingent on their reputation.

The Australian public recognise the abhorrence of this practice and the significant harm it causes victims, and expect an appropriate regime to be enacted to prevent and minimise harm to victims or potential victims. The measures in this Bill address this expectation.

The prohibition is directed to protecting a person’s privacy from the non-consensual sharing of intimate images. The ability of the Commissioner to issue a removal notice is directed to minimising ongoing harm should an intimate image be shared without consent, and a remedial direction would be used to ensure a person does not contravene the prohibition. Often the primary goal of victims is to ensure that the intimate image is removed as soon as possible, and these powers facilitate that removal.

The prohibition has been drafted in the least intrusive manner capable of meeting the policy outcome. The prohibition does not prevent the posting of an intimate image if there has been free and express consent provided for the posting of the image. The Bill also includes the concept of an exempt post which would permit the sharing of an intimate image in particular circumstances. For example, an image could be shared if it done for the purposes of proceedings in a court or tribunal, if the image is shared for genuine medical or scientific purposes, or an ordinary reasonable person would consider the sharing of the image to be acceptable. These factors ensure that the measures in the Bill are reasonable and proportionate.

It is noted that section 100 of the Online Safety Act provides the Act does not apply to the extent (if any) that it would impinge the constitutional doctrine of implied freedom of political communication. This ensures that the amendments in this Bill are consistent with the right to freedom of expression as it relates to political communication.

The right to freedom of expression is further protected under the Bill in that decisions regarding the issuing of removal notices, to remove intimate images shared without consent, can be appealed to the Administrative Appeals Tribunal, and reviewed by that Tribunal on their merits.

Overall, to the extent that the Bill engages the right to freedom of expression, it is consistent with that right because the restrictions are provided for by law and are necessary for the respect of the rights and reputation of others. The measures in the Bill are reasonable, necessary and proportionate to achieving the objective of protecting a person’s privacy and reputation, and minimising ongoing harm.

Prohibition on interference with privacy and attacks on reputation

Article 17 recognises the right that no one shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence. It also prohibits unlawful attacks on a person’s reputation, providing that persons have the right to the protection of the law against such interference or attacks.

Article 17 does not set out the reasons for which the guarantees in it may be limited, however, limitations contained in other articles, for example, those which are necessary in a democratic society in the interests of national security, public order, the protection of the rights or freedoms of others, might be legitimate objectives in appropriate circumstances. In any event, limitations on privacy must be authorised by law and must not be arbitrary.

To the extent that the Bill interferes with a person’s privacy and correspondence by prohibiting the non-consensual sharing of intimate images, or requiring a person to remove an intimate image which may be been shared on a social media service, relevant electronic service, or designated internet service, these restrictions are authorised by law, serve a legitimate objective, and are not arbitrary.

The restrictions will be provided for by law in primary legislation. The Online Safety Act will be amended by this Bill to include the prohibition on the non-consensual sharing of intimate images, and to include powers for the Commissioner to issue a removal notice in relation to intimate images which have been posted, or a remedial direction to ensure that a person does not breach the prohibition.

The measures in the Bill are fundamentally directed towards protecting the privacy and reputation of vulnerable people. As noted above, the non-consensual sharing of an intimate image is a serious breach of a person’s right to privacy, and often has serious, harmful and reputational consequences for the person depicted in the image. In prohibiting the non-consensual sharing of intimate images, and facilitating quick removal of intimate images through issuing removal notices, the Bill promotes the protection of a person’s privacy and reputation. The objectives of harm prevention and minimisation, and protection of privacy and reputation, are legitimate objectives, achieved through reasonable and proportionate means, and are not arbitrary. 

To the extent that measures in the Bill would permit the Commissioner to collect personal information, these serve a legitimate objective and are not arbitrary. For example, the Commissioner may receive personal information through the complaints or objection notice process, or when conducting an investigation into a complaint. The collection of this information is necessary to allow for the proper administration of the non-consensual sharing of intimate images regime established by the Bill, and for the proper exercise of the Commissioner’s powers. It is noted that any personal information collected by the Commissioner would be appropriately protected, and dealt with in accordance with the Privacy Act 1988 .

The purpose of the Bill is to promote the right to privacy, and to protect people from attacks on their reputation. To the extent that some of the measures in the Bill restrict the right to privacy, these restrictions are provided for by law, serve a legitimate objective, and are not arbitrary. 

The right to a fair trial and fair hearing rights; the right to minimum guarantees in criminal proceedings;

Conferral of jurisdiction on the Federal Court of Australia

Article 14 of the ICCPR provides for the right to a fair and public hearing in civil proceedings. This includes the right that all persons are equal before the courts and tribunals, and the right to a fair and public hearing before a competent, independent and impartial court or tribunal established by law.

The Bill engages this right as it confers jurisdiction on the Federal Court of Australia in relation to the Commissioner seeking a civil penalty order, applying for an injunction, or enforcing an enforceable undertaking. The Online Safety Act currently only confers jurisdiction on the Federal Circuit Court of Australia in relation to these matters.

Accordingly, to the extent that the measures in the Bill engage this right because it confers jurisdiction on an additional court, it promotes the right to a fair and public hearing in civil proceedings. The conferral of jurisdiction on an additional court also ensures that matters can be heard at the lowest level appropriate and ensures that the workload is spread between multiple courts. The hearing of civil proceedings before either the Federal Circuit Court of Australia or the Federal Court of Australia, ensures that a competent, independent and impartial court established by law will hear the matter.

To the extent the Bill engages this right as a result of conferral of jurisdiction on the Federal Court of Australia, it is consistent with, and does not limit, that right.

Triggering of civil penalty provisions in the Regulatory Powers Act

Article 14 of the ICCPR recognises certain minimum guarantees in criminal proceedings. A penalty may be ‘criminal’ for the purposes of the ICCPR even if it is ‘civil’ under Australian domestic law. Accordingly, it needs to be considered whether the triggering of provisions in the Regulatory Powers Act by the Bill would engage criminal process rights under the ICCPR.

The Bill triggers the civil penalty provisions contained in Part 4 of the Regulatory Powers Act in relation to a contravention of the prohibition on the non-consensual sharing of intimate images, failure to comply with a removal notice, and failure to adhere to a remedial direction. Triggering the civil penalty provisions of the Regulatory Powers Act could engage criminal process rights if the imposition of civil penalties is classified as ‘criminal’ under international human rights law. Article 14 of the ICCPR requires that, in the determination of criminal charges, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Various other rights are provided for persons charged with criminal offences.

Determining whether penalties could be considered to be criminal under international human rights law requires consideration of the classification of the penalty provisions under Australian domestic law, the nature and purpose of the penalties, and the severity of the penalties.

The penalty provisions in the Bill are expressly classified as civil penalties. The purpose of these penalties is to encourage compliance with the prohibition on the non-consensual sharing of intimate images, and compliance with any removal notice or remedial direction given to a person. The civil penalty provisions in the Bill do not impose criminal liability, and do not lead to the creation of a criminal record. The penalties would only apply to those who have breached the prohibition on the non-consensual sharing of intimate images, or failed to comply with a removal notice or remedial direction, rather than the public in general.

The amount of 500 penalty units applies to a contravention of a civil penalty provision (currently $105,000 for a natural person). This amount reflects the extremely serious nature of the non-consensual sharing of intimate images, and the significant harm and distress that can be caused to a person from the sharing of an intimate image without consent. It also reflects that the failure to comply with a removal notice or a remedial direction can cause significant distress and harm in itself.

It is noted that under the Regulatory Powers Act, when determining the amount of the penalty to be imposed, a court is required to consider the nature and extent of the contravention, the loss and damage suffered because of the contravention, the circumstances in which the contravention took place, and whether the person has been found by a court to have engaged in similar conduct in the past. This provides the court with a discretion, in light of the circumstances of the case, to impose an appropriate penalty of up to 500 penalty units if the person is found to be in contravention of this provision. That is, a court could decide not to impose the full 500 penalty units in relation to a contravention. The penalty provisions do not carry the possibility of imprisonment.

These factors all suggest that the civil penalties imposed by the Bill are civil rather criminal in nature. Accordingly, the criminal process rights provided for by Article 14 of the ICCPR are not engaged by the Bill relating to civil penalty orders.                

Triggering infringement notice provisions in the Regulatory Powers Act

The Bill also triggers the infringement notice provisions contained in Part 5 of the Regulatory Powers Act in relation to a contravention of the prohibition on the non-consensual sharing of intimate images, failure to comply with removal notices, and failure to adhere to remedial directions. There are no criminal consequences associated with an infringement notice for a contravention of a civil penalty provision. For example, an infringement notice does not carry the possibility of imprisonment if the person does not pay the penalty specified in the notice.

There is a requirement under the Regulatory Powers Act that an infringement notice state that the person may choose not to pay the penalty and notify them that, if they do so, proceedings seeking a civil penalty order may be sought against them in a court. The maximum penalty that an infringement notice can impose on a natural person will be 12 penalty units, and the person can always request the relevant chief executive to withdraw the infringement notice.

These factors all suggest that the infringement notice provisions triggered by this Bill are civil rather than criminal in nature. Accordingly, the criminal process rights provided for by Article 14 of the ICCPR are not engaged by the Bill in relation to the issuing of infringement notices for breach of the civil penalty provisions. Further, as the person may elect to have the matter heard by a court, rather than pay the amount in the infringement notice, the right to a fair hearing in civil matters provided for by Article 14(1) of the ICCPR is engaged, but not limited (for the reasons discussed above).

Triggering enforceable undertaking provisions in the Regulatory Powers Act

The Bill also triggers the enforceable undertaking provisions in Part 6 of the Regulatory Powers Act, which will allow the Commissioner to accept and enforce undertakings relating to compliance with the prohibition on the non-consensual sharing of intimate images, and failure to comply with a removal notice or a remedial direction. Further, if the Commissioner is satisfied the person has breached the undertaking, he or she may apply to a relevant court for an order relating to the undertaking.

Accordingly, the triggering of these provisions engages the right to a fair and public hearing in civil proceedings. As an order enforcing an undertaking can only be made by the Federal Circuit Court of Australia, or the Federal Court of Australia, both of which are competent, independent and impartial courts established by law, this right is engaged but not limited (for the reasons discussed above). 

Triggering injunction provisions in the Regulatory Powers Act

The Bill also triggers the injunction provisions in Part 7 of the Regulatory Powers Act , which will enable the Commissioner to apply to a relevant court for an injunction restraining the person from engaging in conduct, or requiring the person to do a particular thing. In particular, the Commissioner would be able to seek an injunction in relation to a threat to contravene the prohibition on the non-consensual sharing of intimate images, or a failure to comply with a removal notice or remedial direction.

Triggering the injunction provisions of the Regulatory Powers Act engages the right to a fair and public hearing in civil proceedings. As an injunction can only be issued by the Federal Circuit Court of Australia or the Federal Court of Australia, both of which are competent, independent and impartial courts established by law, this right is engaged but not limited (for the reasons discussed above).           

The right to protection from exploitation, violence and abuse

The right to protection from exploitation, violence and abuse is primarily contained in Article 20(2) of the ICCPR and other related conventions. The ICCPR and related conventions requires Australia to take measures to protect persons from exploitation, violence and abuse.

This right is engaged as the Bill is primarily directed to protecting vulnerable people from the harm that can result from the non-consensual sharing of an intimate image. As discussed above, the practice of sharing intimate images without consent is generally intended to cause harm, distress, humiliation and embarrassment, whether through the actual sharing, or a threat to share intimate images. This is often done in an attempt to control, blackmail, coerce or punish a victim. Other motives may include sexual gratification, fun, social notoriety and/or financial gain. It is clear from these motivations that the non-consensual sharing of an intimate image is an exploitative and abusive act that often causes significant harm and distress to the person depicted in the image.  

The Bill promotes the right to protection from exploitation, violence and abuse as it prohibits the non-consensual sharing of intimate images. The purpose of the Bill is to deter people from engaging in this behaviour, and to provide the Commissioner with an appropriate enforcement mechanism to address contraventions of the prohibition. The Bill also serves the purpose of minimising further harm that may occur as a result of a contravention of the prohibition, through conferring powers on the Commissioner to issue removal notices to require removal of the intimate image, and remedial directions directed at ensuring the prohibition is not contravened.

Accordingly, the Bill is consistent with the right to protection from exploitation, violence and abuse, as the measures contained in the Bill are directed towards the protection of persons from exploitation, violence and abuse.

Conclusion

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

To the extent to which measures may engage the right to freedom of expression, and the prohibition on interference with privacy and unlawful attacks on reputation, the restrictions are provided for by law, and are reasonable, necessary and proportionate in serving a legitimate objective.

The measures in the Bill do not limit the right to a fair and public hearing in civil proceedings, to the extent the measures engage that right.

The measures in the Bill promote the right to protection from exploitation, violence and abuse.

 









ABBREVIATIONS

 

The following abbreviations are used in this explanatory memorandum:

 

BSA

Broadcasting Services Act 1992

Bill

Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2018

Commissioner

eSafety Commissioner

Criminal Code Act

Criminal Code Act 1995

Online Safety Act

Enhancing Online Safety Act 2015

Regulatory Powers Act

Regulatory Powers (Standard Provisions) Act 2014

 

 

 



 

NOTES ON CLAUSES

ENHANCING ONLINE SAFETY (NON-CONSENSUAL SHARING OF INTIMATE IMAGES) BILL 2018

 

Clause 1 - Short title

Clause 1 provides that the Bill, when enacted, may be cited as the Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Act 2018.

This is a broad title and reflects that the content of the Bill is directed to prohibiting the non-consensual sharing of intimate images using various platforms, and providing the Commissioner with powers to facilitate quick removal of that image. The title also reflects that the Bill also contains an objections system in relation to intimate images that have been shared and consent was subsequently withdrawn.       

Clause 2 - Commencement

Clause 2 provides for the commencement of the Bill. The whole of the Bill will commence on the day after the Bill receives the Royal Assent.

Clause 3 - Schedules

Clause 3 provides that legislation that is specified in a Schedule to the Bill is amended or repealed as set out in the applicable items in that Schedule, and any other item in a Schedule has effect according to its terms.

Clause 4 - Review of operation of amendments

Clause 4 provides that within 3 years after the commencement of the clause, the Minister must cause to be conducted an independent review of the operation of the amendments made by the Bill. This review will provide an opportunity for an independent assessment of the effectiveness of the regime established by the Bill to ensure it remains fit for purpose.

The Minister must ensure that there is a written report prepared of the review, and that copies of the report are to be tabled in each House of Parliament within 15 sitting days of that House after the day on which the written report is given to the Minister.

 

 



 

SCHEDULE 1--AMENDMENTS

Broadcasting Services Act 1992

Item 1 - After paragraph 169A(a)

Item 1 would insert a reference to section 19C of the Online Safety Act into section 169A of the BSA.

Item 2 4 of this Bill would insert section 19C into the Online Safety Act, which provides that the Commissioner may investigate a complaint made that there has been a non-consensual sharing of an intimate image. The investigation powers in section 19C have effect subject to Part 13 of the BSA, which contains certain investigative and information gathering powers of the Commissioner.

Section 169A of the BSA sets out which investigative and information gathering powers of the Commissioner are to be exercised in accordance with Part 13 of the BSA. The effect of this amendment is that the Commissioner’s investigative and information gathering powers under section 19C of the Online Safety Act, would include, and be subject to, those set out in in Part 13 of the BSA.

Enhancing Online Safety Act 2015

Item 2 - Section 3

Item 2 would amend section 3 of the Online Safety Act, which contains the simplified outline of the Act, to make it clear that the functions of the Commissioner include administering a complaints and objections system for the non-consensual sharing of intimate images.

Item 3 - At the end of section 3

Item 3 would amend section 3 of the Online Safety Act, which contains the simplified outline of the Act, to include a description of the complaints and objections system for the non-consensual sharing of intimate images.

The key aspects of the complaints and objections system are summarised in the simplified outline of the Act, and include the following components:

·          A person who posts, or threatens to post, an intimate image without consent 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 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 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 removal notice requiring the provider to cease hosting the image on the service.

Item 4 - Section 4

Item 4 would insert in the appropriate order in section 4, the following definitions:

·          Consent , when used in relation to an intimate image, has the meaning given by section 9E, to be inserted by item 18 of the Bill.

·          Data storage device means any article or material from which information is capable of being reproduced, with or without the aid of any other article or device. While an example of a disk is provided in the definition, this term is intended to be broad and will capture any device that can be used to store data. For example, it will include: a computer, a compact disc, a tablet, a smartphone, a USB flash drive, a memory card, and other articles or material from which information is capable of being reproduced.

·          Designated internet service has the meaning given by section 9A, which would be inserted by item 18 of the Bill.

·          Exempt post , when used in relation to an intimate image, has the meaning given by section 44M, which would be inserted by item 26 of the Bill.

·          Hosting service has the meaning given by section 9C, which would be inserted by item 18 of the Bill.

·          Hosting service provider , means a person who provides a hosting service. Hosting service would be defined by new section 9C of the Act.

·          Internet carriage service has the same meaning as in Schedule 5 to the Broadcasting Services Act 1992 , which means a listed carriage service that enables end-users to access the internet.

·          Intimate image has the meaning given by section 9B, which would be inserted by item 18 of the Bill.

·          Objection notice means a notice under section 19B, which would be inserted by item 24 of the Bill.

·          On-demand program service has the meaning given by section 9D, which would be inserted by item 18 of the Bill.   

Item 5 - Section 4 (definition of posted )

Item 5 would amend the definition of posted in section 4 of the Act to include a reference to ‘designated internet service’.

The effect of this amendment is that the term posted also captures the posting of material on a designated internet service. This is required because the prohibition on the non-consensual sharing of intimate images also extends to the posting of an intimate image on a designated internet service by an end-user.   

Item 6 - Section 4 (at the end of the definition of posted )

Item 6 would insert a note at the end of the definition of posted making it clear that other parts of speech and grammatical forms of posted have a corresponding meaning. This alerts readers to the effect of section 18A of the Acts Interpretation Act 1901.

Item 7 - Section 4 (definition of provided )

Item 7 would amend the definition of provided in section 4 of the Act to include a reference to ‘designated internet service’.

The effect of this amendment is that the term provided will also capture material that is provided on a designated internet service. This is required because the prohibition on the non-consensual sharing of intimate images also extends to the posting of an intimate image on a designated internet service by an end-user, and removal notices can be issued in respect of images that are provided on a designated internet service.

Item 8 - Section 4 (definition of provider )

Item 8 would amend the definition of provider in section 4 of the Act to include a reference to ‘designated internet service’. The definition of provider in section 4 of the Online Safety Act makes it clear that the term provider has a meaning affected by section 105 of the Online Safety Act.

The effect of this amendment is that a person will not be a provider of a designated internet service merely because the person supplies a carriage service that enables material to be accessed or delivered on that service. The amendment will also make it clear that a person does not provide a designated internet service if they merely provide a billing service, or a fee collection service, in relation to the designated internet service.

This amendment is required because the prohibition on the non-consensual sharing of intimate images also extends to the sharing of an intimate image on a designated internet service. However, the intention is not for an internet service provider who merely provides a carriage service to be able to be issued with a removal notice for providing the intimate image. This amendment, along with item 45 will make this clear.  

Item 9 - Section 4

Item 9 would insert a definition of removal notice which means a notice under sections 44D, 44E or 44F of the Act, to be inserted by item 26 of this Bill.

The Commissioner has the power to issue a removal notice to: a provider of a social media service, relevant electronic service, or designated internet service; an end-user; or a hosting service provider. A removal notice can only be issued if the criteria for issuing the notice in sections 44D, 44E or 44F are satisfied, and this includes there having been a complaint about the non-consensual sharing of an intimate image, or in response to an objection notice in relation to an intimate image. 

Item 10 - Section 4 (definition of removed )

Item 10 would amend the definition of removed in section 4 of the Act, to include a reference to ‘designated internet service’.

The effect of this amendment is that the term removed will also capture the removal of material from a designated internet service. This is required because the prohibition on the non-consensual sharing of intimate images also extends to the sharing of an intimate image on a designated internet service, and the term removed will also need to cover removal of the material from that service.

Item 11 - Section 4

Item 11 would insert a definition of the phrase stored material which means material kept on a data storage device. Stored material would include material kept in a data centre, or stored on a computer, a compact disc, a tablet, a smartphone, a USB flash drive, a memory card, and other articles or material from which information is capable of being reproduced.

The defined phrase makes it clear that it does not extend to the storage of material on a highly transitory basis as an integral function of the technology used in its transmission. The note provides an example of this, which is the momentary buffering in a router to resolve a path for further transmission. This very limited exception makes it clear that storage on a highly transitory basis which is a function of the technology used, will not amount to stored material.

This item would also insert a definition of threat which includes a threat made by any conduct, whether express or implied and whether conditional or unconditional. This amendment is required because the prohibition on the non-consensual sharing of intimate images also extends to the threat to share an intimate image without consent.

This is an inclusive definition which makes it clear that the term threat is to be broadly interpreted. It is intended that it extends to a threat made by any conduct, whether that be verbal or physical, express or implied, or a threat which is subject to a condition that the person do something, or an unconditional threat. 

Item 12 - Section 6 (heading)

Item 12 would substitute a new heading for section 6 which is ‘When material is provided on a social media service, relevant electronic service or designated internet service’. This amendment is required because the definition of provided in section 6 will be extended to cover material that is provided on a designated internet service.

Item 13 - Section 6

Item 13 would amend section 6 to include a reference to ‘designated internet service’.

The effect of this amendment is that the term provided will also capture material that is provided on a designated internet service. This is required because the prohibition on the non-consensual sharing of intimate images also extends to an intimate image shared on a designated internet service.

An example of material that may be provided on a designated internet service is an intimate image that is accessible to, or delivered to, one or more people using the internet service because the image is available for viewing on a website.

However, it is noted that section 105 modifies the meaning of the word provider. A person will not be a provider of a designated internet service merely because they provide a carriage service that enables material to be accessed or delivered. This is to ensure that persons who are merely internet service providers, for example, are not able to be issued with a removal notice for providing the intimate image.  Item 45 will make this clear.  

Item 14 - Section 7 (heading)

Item 14 would substitute a new heading for section 7 which is ‘When material is posted by an end-user of a social media service, relevant electronic service or designated internet service’. This amendment is required because the definition of posted in section 7 will be extended to cover material that is provided on a designated internet service.

Item 15 - Section 7

Item 15 would amend section 7 to include a reference to ‘designated internet service’.

The effect of this amendment is that the term posted will also capture material that is posted on a designated internet service. This is required because the prohibition on the non-consensual sharing of intimate images also extends to the posting of an intimate image on a designated internet service by an end-user.

An example of material that may be posted on a designated internet service is an intimate image that has been posted without consent by an end-user on a pornographic website that is accessible to, or delivered to, other people using the internet service.

Item 16 - Section 8 (heading)

Item 16 would substitute a new heading for section 8 which is ‘When material is removed from a social media service, relevant electronic service or designated internet service’. This amendment is required because the definition of removed in section 8 will be extended to cover the removal of material from a designated internet service.

Item 17 - Section 8

Item 17 would amend section 8 to include a reference to ‘designated internet service’.

The effect of this amendment is that the term removed will also capture the removal of material from a designated internet service. This is required because the prohibition on the non-consensual sharing of intimate images also extends to the posting of an intimate image on a designated internet service, and the Commissioner will be able to issue removal notices in respect of such material.

An example of material that may be removed from a designated internet service is an intimate image that had previously been posted on a pornographic website, but is no longer accessible to, nor deliverable to, any end-users in Australia using the service.

Item 18 - After section 9

Item 18 would insert several new definitions which relate to the complaints and objections system for non-consensual sharing of intimate images.

Proposed section 9A - Designated internet service

Proposed section 9A would insert a definition of designated internet service which would mean:

·          A service that allows people to access material using an internet carriage service.

·          A service that delivers material to persons having equipment appropriate for receiving that material, where delivery of the service is by way of an internet carriage service.

However, a designated internet service would not include:

·          A social media service, because this type of service is defined in the Act and the prohibition on the non-consensual sharing of intimate images would expressly apply to sharing of intimate images using a social media service.

·          A relevant electronic service, because this type of service is defined in the Act and the prohibition of the non-consensual sharing of intimate images would expressly apply to sharing of images using a relevant electronic service.

·          An on-demand program service, because this type of service streams content being broadcast on television over the internet (for example, using the ABC iView application or other simular applications). It is not appropriate for the non-consensual sharing of intimate images regime established by the Bill to apply to broadcasters who are regulated, have to comply with licence conditions and relevant codes of practice, under the Broadcasting Services Act 1992 .

·          A service specified under subsection (2), which would allow the Minister to specify a particular internet service in the future which would not be a designated internet service.

Proposed subsection 9A(2) would allow the Minister to specify one or more services which are not a designated internet service. This would allow the Minister to carve out from the definition internet services which are not appropriate to be subject to the regime establishing the prohibition on the non-consensual sharing of intimate images. The Minister would do this by legislative instrument, which would be subject to Parliamentary scrutiny through the disallowance process. 

Proposed section 9B - Intimate image

Proposed section 9B would set out the circumstances in which material would be considered an intimate image of a person for the purposes of the Act. There are three types of intimate images: depictions of a person’s private parts; depictions of private activity; and depictions of a person without attire of religious or cultural significance. 

Depiction of private parts

Material will be an intimate image of a person if it depicts, or appears to depict, a person’s genital area or anal area (whether bare or covered by underwear), in circumstances in which an ordinary reasonable person would reasonably expect to be afforded privacy.

Material will also be an intimate image of a female, or transgender or intersex person identifying as female, if it depicts, or appears to depict, either or both of the person’s breasts, in circumstances in which an ordinary reasonable person would reasonably expect to be afforded privacy.

In most circumstances, an ordinary reasonable person would reasonably expect to be afforded privacy in relation to these types of images. However, if the image is in circumstances where an ordinary reasonable person would not reasonably expect to be afforded privacy, the image will not be an intimate image, for example, an image of an underwear model will not be an intimate image. 

Depiction of private activity

Material will be an intimate image of a person if it depicts, or appears to depict, the person: in a state of undress, using the toilet, showering, having a bath, engaged in a sexual act of a kind not ordinarily done in public, or engaged in other like activity; in circumstances in which an ordinary reasonable person would reasonably expect to be afforded privacy.

The listed private activities are those where an ordinary reasonable person would reasonably expect to be afforded privacy. However, if the image is in circumstances where an ordinary reasonable person would not reasonably expect to be afforded privacy, the image will not be an intimate image.

Depiction of person without attire of religious or cultural significance

Material will be an intimate image of a person if it depicts, or appears to depict, the person without religious or cultural attire that the person consistently wears whenever the person is in public, in circumstances in which an ordinary reasonable person would reasonably expect to be afforded privacy.

This definition recognises that an image of a person without particular religious or cultural attire that they consistently wear, can cause significant harm to the person. For example, a Muslim woman who consistently wears a niqab while in public could become significantly distressed if a picture of her without her niqab was shared. Similarly, a Sikh man who consistently wears a turban while in public, could suffer harm and distress if an image of them without their turban was shared.

Each of the above three definitions make it clear that an intimate image can be a still visual image such as a photograph, or moving visual images such as video recordings. Images could be photographs, modified photographs, animations, drawings or other depictions of the person.

As each of the definitions apply to an image that depicts, or appears to depict a person, this will cover situations where the intimate image may have been modified or altered (which is also made clear in proposed subsection 9B(5)). This will also cover situations where it may not be with absolute certainty that the intimate image depicts a private part, for example, but where it is likely that it does.

To be an intimate image under any of the three definitions, the image must be in circumstances in which an ordinary reasonable person would reasonably expect to be afforded privacy. The listed circumstances are generally those in which an ordinary reasonable person would reasonably expect to be afforded privacy. However, whether this is the case will turn on the facts and circumstances of each image.

Examples where an ordinary reasonable person may not reasonably expect to be afforded privacy and therefore an image would not be an intimate image (subject to any unique facts or circumstances in that particular case) are:

·          A photograph of an underwear model. An ordinary reasonable person would not expect an image of an underwear model, specifically taken for the purpose of advertising underwear, to be a circumstance where there was a reasonable expectation of privacy.

·          An image of a person showering using an outdoor shower facility at a public beach, where the person is still wearing a swimming costume.

Interpretative provisions

Proposed subsection 9B(5) would provide that for the purposes of this section, it is immaterial whether material has been altered. The effect of this provision is to put it beyond doubt that an image could still be an intimate image even if it has been altered or modified. This is to cover the practice known as ‘morph porn’ or ‘parasite porn’, where an image may be altered or modified to transpose one person’s head on another person’s body, for example.

Proposed subsection 9B(6) makes it clear that if material depicts, or appears to depict, a part of the body of a person, the material is taken to depict the person, or appear to depict the person, as the case requires. The effect of this provision is to make it clear that the person does not need to be identifiable from the image, or for the image to include the person’s face, in order to be an intimate image. For example, a depiction of a female’s bare breasts and chest only, would be taken to be a depiction of the person notwithstanding that the person’s face was not included in the image.



 

Proposed section 9C - Hosting service

Proposed section 9C would insert a definition of hosting service for the purposes of the Act.

If a person (the first person ) hosts stored material that has been posted on a social media service, a relevant electronic service, or a designated internet service, and the first person or another person, provides one of those services on which the hosted material is provided, the hosting of the stored material by the first person is taken to be the provision of a hosting service .

The definition of hosting service covers the hosting and storage of content and data by a person in relation to those listed services. The definition of hosting service does not require the hosting service provider to be providing one of those listed services (although, often they may also provide one of the services). An example of a provision of a hosting service is where a person hosts stored material or content for a website, or for an email service.

It is noted that a search engine which merely indexes content and makes it searchable would not meet this definition of hosting service. 

A definition of hosting service is required because under the complaints and objections system for non-consensual sharing of intimate images, a hosting service provider who hosts an intimate image may be given a removal notice requiring the provider to cease hosting the image. 

Proposed section 9D - On-demand program service

Proposed section 9D would define the phrase on-demand program service for the purposes of the Act.

An on-demand program service is generally a service that is provided to end-users using an internet carriage service, which does no more than provide material that is identical to a program that has been, or is being, transmitted by broadcasters. Examples of on-demand program services include SBS On Demand, and ABC iView and other similar applications. The provision contains a list of broadcaster services to which an on-demand program service relates. It is noted that if the on-demand program service material has not been transmitted by one of these services, it will not be captured by this definition.   

When determining whether material is identical to a program, differences that are attributable to the technical characteristics of the provision or transmission are to be disregarded, as is the presence or absence of a watermark-type logo or insignia.

Proposed subsection 9D(4) is a definitional provision and provides that an expression used in paragraph 9D(1)(a) will have the same meaning as it has in the Broadcasting Services Act 1992 .

A definition of on-demand program services is required, in order to exclude this type of service from the definition of designated internet service. On-demand program service material, to the extent it is also transmitted on the broadcaster’s service, will be regulated under the Broadcasting Services Act 1992 and the broadcasters would be subject to licence conditions under that Act. Accordingly, it is not it is not appropriate for the regime relating to the non-consensual sharing of intimate images to apply to programs that are shown on an on-demand program service simply because they are transmitted over the internet, if those programs have, or are being, broadcast on television. 

Proposed section 9E - Consent

Proposed section 9E would define consent for the purposes of the application of an Act to an intimate image.

The definition provides that in relation to an intimate image, consent must be express, voluntary, and informed. This requires consent to be clearly given for the particular instance of the sharing, which could be verbal or in writing. This would require consent to be freely given, and not given under some kind of threat, warning, condition or consequence. It would also require consent to be informed, it is expected that informed consent would include information about whom the image will be shared with, and the purpose of the sharing.

Under the regime established by this Bill, consent will need to be in relation to the particular instance of sharing. For example, consent to share an image with one individual would not cover the sharing of an image with a different individual. In this situation, if the person wanted to share the image with another person, further consent would be required to share the image with that other person, and that consent must be express, voluntary and informed.

Consent for the further distribution of an intimate image once received would also be required. That is, in circumstances where a person had consent to share an intimate image with a person, if the person who received the image wanted to share that image, consent of the person depicted in the image would be required.

The definition also sets out situations when consent cannot be provided in relation to an intimate image:

·          Consent to share an intimate image cannot be given by a child, who is a person under the age of 18. This is because, to the extent that the definition of intimate image overlaps with the definition of child pornography material in the Commonwealth Criminal Code Act 1995 , a lower age of consent for the distribution of intimate images would create an inappropriate inconsistency between the criminal and civil frameworks. The effect of this item is that a person under the age of 18 cannot provide consent to the sharing by another person of an intimate image of themselves.

·          Consent to share an intimate image cannot be given by an adult who is in a mental or physical condition, whether temporary or permanent, that makes the person incapable of giving consent, or substantially impairs their capacity to give consent. This is to make it clear that an adult who may be unable to comprehend the concept of consent, and the consequences of sharing of the image, for example because they are suffering from a mental disability, cannot provide express, voluntary and informed consent. 

Item 19 - Section 13

Item 19 would make an amendment to the simplified outline to Part 2 of the Act. The amendment would make it clear that one of the functions of the Commissioner is to administer a complaints and objections system for non-consensual sharing of intimate images. 

Item 20 - Part 3 (heading)

Item 20 would replace the heading of Part 3 with ‘Complaints and objections’. This amendment reflects that Part 3 will contain provisions that relate to making complaints in relation to cyber-bullying material, and provisions that relate to complaints and objections in relation to intimate images.

Item 21 - Before section 17

Item 21 would insert the heading ‘Division 1 - Introduction’ which is required because Part 3 will be split into different Divisions relating to subject matter. Division 1 contains the simplified outline to the Part.

Item 22 - At the end of section 17

Item 22 would make an amendment to the simplified outline to Part 3 of the Act. The amendment would make it clear that there is to be a complaints and objections system for the non-consensual sharing of intimate images. 

Item 23 - Before section 18

Item 23 would insert the heading ‘Division 2 - Complaints about cyber-bullying material’ before section 18. This reflects that the following provision relate to complaints in respect of the existing cyber-bullying regime.

Item 24 - At the end of Part 3

Item 24 would insert Division 3 at the end of Part 3 of the Act.

Division 3— Complaints about, and objections to, intimate images

This heading reflects that Division 3 contains provisions relating to complaints about the non-consensual sharing of intimate images, and objections to intimate images previously shared with consent.

Proposed section 19A - Complaints

Proposed section 19A would allow a person who is the subject of an intimate image to make a complaint to the Commissioner if they believe the image has been shared without their consent.

The provision makes it clear that the person can make a complaint even if they are not able to identify the person who allegedly shared the image without consent, however they must include a statement to this effect when making a complaint to the Commissioner. This reflects that victims of non-consensual sharing of intimate images may not always know the perpetrator, for example, because the image has been shared by multiple people. This will also assist the Commissioner in deciding which type of removal notice to issue, should he or she decide to exercise these powers, as notices can be issued to end-users; providers of social media services, relevant electronic services, or designated internet services; or to hosting service providers.

A person can make a complaint to the Commissioner in a number of ways, however it is anticipated that most complaints will be lodged via the Office of the eSafety Commissioner’s online complaints portal. Other methods would include via the email, or over the telephone.

Proposed section 19A would also provide for an authorised person to make a complaint to the Commissioner on behalf of a person who is the subject of an intimate image that has allegedly been shared without their consent, in limited circumstances. Those circumstances are:

·          The person depicted in the image has authorised, verbally or in writing, the person to make a complaint about the matter. An example of a situation where a complaint may be made by an authorised person is where the victim wishes to remain anonymous to minimise further distress when going through the process, and they authorise someone they trust to make the complaint on their behalf. Another example where a person may be authorised to make a complaint is where a child authorises on older sibling to make a complaint on their behalf.

·          The person depicted in the image is a child under the age of 16 years, and the authorised person is a parent or guardian of the depicted person. In these circumstances, the child is not required to authorise the parent or guardian to make a complaint, the parent or guardian can make a complaint if a child is under the age of 16 and a person has shared an intimate image of the child (noting under the definition of consent in proposed section 9E, a child under the age of 18 cannot provide consent to share an intimate image).

·          The person depicted in the image is in a mental or physical condition, whether temporary or permanent, that makes the person incapable of managing their affairs, and the authorised person is a parent or guardian of the depicted person. Similarly, in these circumstances, the person is not required to authorise the parent or guardian to make a complaint, the parent or guardian can make a complaint if the person is incapable of managing their own affairs and there has been a contravention of the prohibition on the non-consensual sharing of an intimate image.

If an authorised person is making a complaint, the authorised person must make a declaration to the Commissioner indicating that the person is entitled to make the complaint on behalf of the person depicted in the image.  

Proposed section 19B - Objection notice

Proposed section 19B would allow a person who is the subject of an intimate image to give an objection notice to the Commissioner in relation to that image.

The criteria for the giving of an objection notice by a person to the Commissioner are:

·          The intimate image was posted on a social media service, a relevant electronic service, or a designated internet service by an end-user of the service;

·          The posting of the image on the service did not constitute an exempt post, as defined in proposed section 44M; and

·          There was a link to Australia, which would be satisfied if the depicted person or the end user were ordinarily resident in Australia, or the intimate image is hosted in Australia.

It is expected that people will be able to give an objection notice in a number of ways, these may include via email, through the online complaints portal, or in person. 

A person may give an objection notice to the Commissioner even if the depicted person consented to the posting of the intimate image on the service. That is, an objection notice can be given to the Commissioner even if there was no breach of the prohibition contained in proposed section 44B of the Act. One of the purposes of the objection notice is to provide an avenue to seek removal of intimate images that a person may regret providing consent to share the image, or the person is suffering distress or harm that was not foreseen at the time they provided consent.

If the criteria for the giving of an objection notice in relation to another person have been met, proposed section 19B would also provide for an authorised person to make a complaint to the Commissioner on behalf of a person who is depicted in the intimate image that has allegedly been shared, in limited circumstances. Those circumstances are:

·          The person depicted in the image has authorised, verbally or in writing, the person to give an objection notice to the Commissioner. An example of a situation where an objection notice may be given by an authorised person is where the victim wishes to remain anonymous to minimise further distress, and they authorise someone they trust to give the objection notice on their behalf.

·          The person depicted in the image is a child under the age of 16 years, and the authorised person is a parent or guardian of the depicted person. In these circumstances, the child is not required to authorise the parent or guardian to give the objection notice, the parent or guardian can give the notice if a child is under the age of 16 and a person has shared an intimate image of the child.

·          The person depicted in the image is in a mental or physical condition, whether temporary or permanent, that makes the person incapable of managing their affairs, and the authorised person is a parent or guardian of the depicted person. Similarly, in these circumstances, the person is not required to authorise the parent or guardian to give the objection notice, the parent or guardian can give the notice if the person is incapable of managing their own affairs and an intimate image has been shared.

If an authorised person is giving an objection notice to the Commissioner, the authorised person must make a declaration to the Commissioner indicating that the person is entitled to give the notice on behalf of the person depicted in the image.

An authorised person may give an objection notice to the Commissioner even if the depicted person consented to the posting of the intimate image on the service. This reflects that the intention of the objection notices is to provide an avenue for people to seek removal of intimate images, even if they consented to the sharing of the image in the past.

Proposed section 19B also includes a transitional provision which makes it clear that if an intimate image was posted on a social media service, a relevant electronic service, or a designated internet service, before commencement of this provision, the section does not apply to the posting of the image. However, if the image that was posted on the relevant service prior to commencement continues to be provided on that service, this section will apply.

The effect of this section is to allow the giving of an objection notice in relation to an intimate image which may have been posted prior to the commencement of the section, but is still available to be accessed after commencement as it continues to be provided on the relevant service. It will ensure that the Commissioner can exercise his or her powers, if appropriate, in relation to an intimate image that was posted prior to commencement, but is still accessible on the service.

Proposed section 19C - Investigation of complaints

Proposed section 19C would provide the Commissioner with the discretion to investigate a complaint made under proposed section 19A. The discretionary nature of this power provides flexibility to the Commissioner to decide which complaints will be investigated, and will allow the Commissioner to appropriately direct resources to where they are needed most.

The proposed provision makes it clear that the Commissioner can conduct an investigation, obtain information, and make such inquiries as the Commissioner thinks fit. This reflects the intention that the Commissioner should be able to conduct any investigation in a manner that he or she considers appropriate. It is expected that the Commissioner will develop appropriate procedures for the acceptance, investigation and closing of complaints.

However, these powers of the Commissioner have effect subject to Part 13 of the BSA which provides the Commissioner with certain investigative powers. Those powers include the power to summon persons to attend before the Commissioner, or a delegate, to provide a document or answer questions, examine a person under oath or affirmation, or require the production of documents for inspection. These existing powers provide appropriate information gathering powers for the Commissioner to utilise in any investigation he or she undertakes under proposed section 19C.

The proposed provision also makes it clear that the Commissioner can terminate an investigation under this section. The effect of this provision is that after the Commissioner commences an investigation, if the Commissioner decides not to further pursue the investigation, the Commissioner can terminate that investigation. This could occur, for example, in circumstances where the Commissioner commenced an investigation and, based on initial inquiries, determined that the complaint did not have any merit. 

Proposed section 19D - Commissioner’s response to objection notices

Proposed section 19D would provide that if an objection notice is given to the Commissioner under proposed section 19B in relation to an intimate image, the Commissioner may consider whether to give a removal notice in relation to the image.

The effect of this provision is to make it clear that if the Commissioner has received an objection notice under proposed section 19B, the Commissioner has the discretion to decide whether to give a removal notice under proposed sections 44D, 44E or 44F in relation to the intimate image. The discretionary nature of this power provides flexibility to the Commissioner to decide when objection notices will be considered, allowing resources to be directed to where they are needed most.

Item 25 - Part 5 (heading)

Item 25 would replace the heading of Part 5 with ‘End-user notices relating to cyber-bullying material’. This amendment reflects that Part 5 will contain provisions relating to end-user notices given in respect of cyber-bullying material.

Item 26 - After Part 5

Item 26 would insert Part 5A into the Act, which contains the prohibition on the non-consensual sharing of intimate images, and the powers of the Commissioner to issue removal notices and give remedial directions.

Part 5A— Non-consensual sharing of intimate images

Division 1 — Introduction

Proposed section 44A - Simplified outline of this Part

Proposed section 44A would insert the simplified outline for Part 5A of the Act. The simplified outline would provide:

·          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 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 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 removal notice requiring the provider to cease hosting the image.   

Division 2 — Intimate images must not be posted without consent etc.

Proposed section 44B - Posting an intimate image

Proposed section 44B would insert the prohibition on the non-consensual sharing of intimate images.

The section would provide that a person must not post, or make a threat to post, an intimate image of another person without consent on a social media service, a relevant electronic service, or a designated internet service. For the prohibition to apply, either the person posting the intimate image, or the person depicted in the image, is to be ordinarily resident in Australia. This link would ensure that there is an appropriate connection to Australia for the purposes of the Commissioner exercising his or her powers.

This is a civil penalty provision and 500 penalty units attaches to a contravention of this provision. Civil penalty provisions are enforceable under Part 4 of the Regulatory Powers Act, in accordance with subsection 46(1) of the Act. Under the Regulatory Powers Act, the amount of 500 penalty units currently equates to $105,000 for individuals, and $525,000 for a body corporate. This amount reflects the extremely serious nature of the non-consensual sharing of intimate images, and the significant harm and distress that can be caused to a person from the sharing of intimate images.

The section would make it clear that the prohibition does not apply if the person depicted in the intimate image consented to the sharing of the image. This reflects that the targeted behaviour is the sharing of intimate images without the person’s consent. If the person consented to the sharing of the intimate image, the prohibition would not be contravened.

There is a note under subsection (2) which would provide that in proceedings for a civil penalty order against a person, the person bears an evidential burden in relation to consent and refers the reader to section 96 of the Regulatory Powers Act. The effect of this is that if the person is claiming the prohibition did not apply because the person depicted in the image consented to the sharing of the image, the person would be required to provide evidence that consent for the sharing of the image was given.

The section also makes it clear that the prohibition does not apply in relation to an intimate image of a person without attire of religious or cultural significance where the person who shared the image did not know that the person who is depicted in the image consistently wore that attire whenever the person is in public. This exception is required because, unlike the other definitions of intimate images in subsection 9B(2) and (3), it may not be clear from the image itself that it is an intimate image. This is because whether the image would be an intimate image will turn on the person’s practice in relation wearing of cultural or religious attire in public.

There is a note under subsection (3) which would provide that in proceedings for a civil penalty order against a person, the person bears an evidential burden in relation to showing that the person was not aware that the person depicted in the image consistently wore attire of religious or cultural significance in public. The effect of this is that if the person is claiming the prohibition did not apply because they did not know that the person depicted in the image consistently wore attire of religious or cultural significance in public, the person relying on this exception would be required to provide evidence of the lack of knowledge.

The section would also make it clear that the prohibition does not apply if the sharing of the intimate image is, or would be, an exempt post. An exempt post would be defined in proposed section 44M, and provides an exemption to the prohibition in certain circumstances.

There is a note under subsection (4) which would provide that in proceedings for a civil penalty order against a person, the person bears an evidential burden in relation to showing that the sharing of an image was an exempt post. The effect of this is that if the person is claiming that the prohibition does not apply because the sharing was an exempt post, the person relying on this exception would be required to provide evidence that the post was in fact an exempt post.   

Proposed section 44C - Formal warning

Proposed section 44C would provide the Commissioner with the discretion to issue a formal warning if a person contravenes the prohibition on the non-consensual sharing of intimate images.

This is an alternative mechanism available to the Commissioner instead of taking other enforcement action. A formal warning provides a lighter touch mechanism which the Commissioner may choose to use. The Commissioner may issue a formal warning instead of pursuing a civil penalty order or issuing an infringement notice where, for example, it is the first contravention by the person, or the person is a child. Whether a formal warning is issued instead of pursing other options is at the discretion of the Commissioner.    

Division 3 — Removal notices

Proposed section 44D - Removal notice given to the provider of a social media service, relevant electronic service or designated internet service

Proposed section 44D would provide the Commissioner with the power, in certain circumstances, to give the provider of a social media service, relevant electronic service, or designated internet service a notice requiring the provider to remove an intimate image that was provided on the service. These notices are given to service providers, as they may be best placed to ensure quick removal of the image from their particular service.

However, given the working relationship the Commissioner has with social media services and content hosts, and the good work these service providers are undertaking in combating the non-consensual sharing of intimate images, it is expected that the Commissioner would ordinarily rely on existing relationships, or other non-formal avenues to achieve the removal of the intimate image rather than giving a removal notice to the service provider.    

Before the Commissioner can give a removal notice in relation to an intimate image, there must be a complaint made to the Commissioner that the image was shared without consent under proposed section 19A, or an objection notice given to the Commissioner in relation to the image under proposed section 19B. This ensures that the Commissioner’s power is only enlivened if the person depicted in the image, or an authorised person, has complained, or objected, to the intimate image.

Another criteria that must be met, is that the intimate image was posted on the service by an end-user of the service. For example, an intimate image posted on a website or a peer to peer sharing service by an end-user of the website or the service would meet this criteria. An intimate image that is merely indexed and made searchable by a search engine would not have been posted on the search engine by an end-user of the search engine, and accordingly would not meet this criteria.

The removal notice would require the provider to take all reasonable steps to ensure the removal of the intimate image from the service, and do so within 48 hours. The Commissioner has the power to extend the timeframe for removal of the intimate image under the notice. The period of 48 hours for removal of the notice reflects that the primary concern of the person depicted in the image is often the removal of the image as quickly as possible.

The removal notice must include, as far as is reasonably practicable, enough information for the service provider to be able to identify the intimate image and remove the image in compliance with the notice. This information could be the URL address, or details of the specific site that the intimate image is hosted on, for example. This is to ensure that the service provider is able to quickly locate, and remove the intimate image in compliance with the notice. 

If the Commissioner was to decide not to issue a removal notice to the service provider, this section would also require the Commissioner to give written notice of the refusal to the person who made the complaint, or lodged the objection notice, in relation to the intimate image. It is expected that the Commissioner would also include reasons why the notice was not issued in the circumstances.   

Proposed section 44E - Removal notice given to an end-user

Proposed section 44E would provide the Commissioner with the power, in certain circumstances, to give an end-user a notice requiring the person to remove an intimate image that was provided on a social media service, a relevant electronic service, or a designated internet service. The effect of this is that the Commissioner can require the person who shared the intimate image to remove the image from the service on which it was provided.

Before the Commissioner can give a removal notice in relation to an intimate image, there must be a complaint made to the Commissioner that the image was shared without consent under proposed section 19A, or an objection notice given to the Commissioner in relation to the image under proposed section 19B. This ensures that the Commissioner’s power is only enlivened if the person depicted in the image, or an authorised person, has complained, or objected, to the intimate image.

The removal notice would require the end-user to take all reasonable steps to ensure the removal of the intimate image from the service, and do so within 48 hours. The Commissioner has the power to extend the timeframe for removal of the intimate image under the notice. The period of 48 hours for removal of the notice reflects that the primary concern of the person depicted in the image is often the removal of the image as quickly as possible.

The removal notice must include, as far as is reasonably practicable, enough information for the end-user to be able to identify the intimate image and remove the image in compliance with the notice. This information could be the URL address, or details of the email or blog in which the intimate image was shared, for example. This is to ensure that the end-user is able to quickly locate, and remove the intimate image. 

If the Commissioner was to decide not to issue a removal notice to the end-user, this section would also require the Commissioner to give written notice of the refusal to the person who made the complaint, or lodged the objection notice, in relation to the intimate image. It is expected that the Commissioner would also include reasons why the notice was not issued in the circumstances.  

Proposed section 44F - Removal notice given to a hosting service provider

Proposed section 44F would provide the Commissioner with the power, in certain circumstances, to give a hosting service provider a notice requiring the provider to remove an intimate image that was provided on a social media service, a relevant electronic service, or a designated internet service. The effect of this is that the Commissioner can require those who host content, such as a website, to remove an intimate image from the service on which it was provided.  

Before the Commissioner can give a removal notice in relation to an intimate image, there must be a complaint made to the Commissioner that the image was shared without consent under proposed section 19A, or an objection notice given to the Commissioner in relation to the image under proposed section 19B. This ensures that the Commissioner’s power is only enlivened if the person depicted in the image, or authorised person, has complained, or objected, to the intimate image.

The removal notice would require the hosting service provider to take all reasonable steps to cease hosting the intimate image on the service, and do so within 48 hours. The Commissioner has the power to extend the timeframe for removal of the intimate image under the notice. The period of 48 hours for removal of the notice reflects that the primary concern of the person depicted in the image is often the removal of the image as quickly as possible.

The removal notice must include, as far as is reasonably practicable, enough information for the hosting service provider to be able to identify the intimate image and remove the image in compliance with the notice. This information could be the URL address, or details of the website on which the image is hosted, for example. This is to ensure that the hosting service provider is able to quickly locate, and remove the intimate image.

If the Commissioner was to decide not to issue a removal notice to the hosting service provider, this section would also require the Commissioner to give written notice of the refusal to the person who made the complaint, or lodged the objection notice, in relation to the intimate image. It is expected that the Commissioner would also include reasons why the notice was not issued in the circumstances.  

Proposed section 44G - Compliance with removal notice

Proposed section 44G would require a person to comply with a requirement under a removal notice to the extent that the person is capable of doing so. The effect of this provision is that if a person has received a removal notice to remove an intimate image from a service and they have the capacity to remove that image, they must comply with the notice.

This is a civil penalty provision, and 500 penalty units attach to a contravention of this provision. Civil penalty provisions are enforceable under Part 4 of the Regulatory Powers Act, in accordance with subsection 46(1) of the Act. If a person refuses to comply with a social media service notice, daily penalties for contraventions of clause 36 would apply under section 93 of the Regulatory Powers Act.

Under the Regulatory Powers Act the amount of 500 penalty units currently equates to $105,000 for individuals, and $525,000 for a body corporate. This amount reflects the extremely serious nature of the non-consensual sharing of intimate images, and the significant harm and distress that can be caused to a person from the sharing of intimate images. In particular, it reflects that the failure to comply with a removal notice can cause significant distress and harm in itself.

It is noted that under the Regulatory Powers Act when determining the amount of the penalty to be imposed, a court is required to consider the nature and extent of the contravention, the loss and damage suffered because of the contravention, the circumstances in which the contravention took place, and whether the person has been found by a court to have engaged in similar conduct in the past. This provides the court with a discretion, in light of the circumstances of the case, to impose a penalty of up to 500 penalty units if the person has been found to be in contravention of this provision.             

Proposed section 44H - Formal warning

Proposed section 44H would provide the Commissioner with the discretion to issue a formal warning if a person does not comply with a removal notice.

This is an alternative mechanism available to the Commissioner instead of taking other enforcement action. A formal warning provides a lighter touch mechanism which the Commissioner may choose to use. Circumstances where the Commissioner may issue a formal warning instead of pursuing a civil penalty order, or issuing an infringement notice, may be where it is the first contravention by the person. Whether a formal warning is issued instead of pursing other options is a decision for the Commissioner.    

Proposed section 44J - Transitional

Proposed section 44J would include a transitional provision which makes it clear that if an intimate image was posted on a social media service, a relevant electronic service, or a designated internet service, before commencement of this provision, the Division does not apply to the posting of the image. However, if the image that was posted on the relevant service prior to commencement of this section continues to be provided on that service after commencement, this section will apply.

The effect of this section is to allow the giving of a removal notice in relation to an intimate image which may have been posted prior to the commencement of the section, but is still available to be accessed after commencement as it continues to be provided on the relevant service. It will ensure that the Commissioner can exercise his or her powers to issue a removal notice, if appropriate, in relation to an intimate image that was posted prior to commencement, but is still accessible on the service.

Division 4 — Miscellaneous

Proposed section 44K - Remedial direction

Proposed section 44K would insert a provision which would allow the Commissioner to give a person a remedial direction if a person has contravened, or is contravening, the prohibition on the non-consensual sharing of intimate images in proposed section 44B.

The Commissioner may give a person a written direction requiring the person to take specified action directed towards ensuring that the person does not contravene proposed section 44B in the future. There is a note referring readers to subsection 33(3) of the Acts Interpretation Act 1901 which makes it clear that this power is to be construed to allow the Commissioner to repeal, rescind, revoke, amend, or vary the direction.

This is a civil penalty provision, and 500 penalty units attach to a contravention of this provision. Civil penalty provisions are enforceable under Part 4 of the Regulatory Powers Act, in accordance with subsection 46(1) of the Act. If a person refuses to comply with a social media service notice, daily penalties for contraventions of clause 36 would apply under section 93 of the Regulatory Powers Act.

Under the Regulatory Powers Act the amount of 500 penalty units currently equates to $105,000 for natural persons, and $525,000 for a body corporate. This amount reflects the extremely serious nature of the non-consensual sharing of intimate images, and the significant harm and distress that can be caused to a person from the sharing of intimate images. In particular, it reflects that the failure to comply with a removal notice can cause significant distress and harm in itself.

It is noted that under the Regulatory Powers Act when determining the amount of the penalty to be imposed, a court is required to consider the nature and extent of the contravention, the loss and damage suffered because of the contravention, the circumstances in which the contravention took place, and whether the person has been found by a court to have engaged in similar conduct in the past. This provides the court with a discretion, in light of the circumstances of the case, to impose a penalty up to an amount of 500 penalty units if the person has been found to be in contravention of this provision.

Proposed section 44K makes it clear that a direction given to a person under this provision is not a legislative instrument.

Proposed section 44L - Formal warning

Proposed section 44L would provide the Commissioner with the discretion to issue a formal warning if a person contravenes a remedial direction.

This is an alternative mechanism available to the Commissioner instead of taking other enforcement action. A formal warning provides a lighter touch mechanism which the Commissioner may choose to use. The Commissioner may issue a formal warning instead of pursuing a civil penalty order or issuing an infringement notice where, for example, it is the first contravention by the person, or the person is a child. Whether a formal warning is issued instead of pursing other options is a decision for the Commissioner.    

Proposed section 44M - Exempt post of an intimate image

Proposed section 44M would insert a definition of an exempt post. If an intimate image was posted on a social media service, relevant electronic service, or designated internet service, but the sharing of the intimate image is an exempt post, the prohibition on the non-consensual sharing of an intimate image would not apply, nor would the Commissioner be able to issue a removal notice.

The posting of an intimate image would be an exempt post if:

·          It was necessary for, or of assistance in, enforcing a law of the Commonwealth, State or Territory, or monitoring compliance with or investigating a contravention of a law of the Commonwealth, a State or a Territory. For example, the Commissioner could share an intimate image with the Australian Federal Police who may be investigating whether the sharing of the image amounted to a criminal offence under the Criminal Code Act 1995 of using a carriage service to menace, harass or cause offence.

·          The post is for the purposes of proceedings in a court or tribunal. For example, if a person applied to the Administrative Appeals Tribunal in relation to a decision to issue a removal notice, the Commissioner could electronically provide the Tribunal with the intimate image for the purposes of the review of the decision.

·          The post is for a genuine medical or scientific purpose. For example, an image taken of a child by a doctor to send to a colleague to discuss treatment options, where that image may otherwise amount to an intimate image.

·          An ordinary reasonable person would consider the sharing of the image acceptable, having regard to various matters. This exception is to ensure that images that are considered socially acceptable to share, can in fact be shared, notwithstanding they may meet the definition of intimate image. Examples of this include, historical images of indigenous Australians or other indigenous peoples, family photos of small children being bathed by their parents, photographs of models that were specifically taken with permission for advertising or publication, or images that are solely satirical in nature.  

·          The post was by a protected person, and the sharing of the image was in connection with the exercise of a power, or the performance of a function, conferred on the Commissioner under the Online Safety Act. For example, a staff member of the Office of the eSafety Commissioner shared an image with another staff member in connection with an investigation into a complaint made regarding the image.

The section also includes a power for the Minister to determine, by legislative instrument, one or more conditions which, if satisfied, would mean the post was exempt. This would allow for, in the future, the Minister to determine that a certain post, or class of posts, were to be exempt posts. 

Item 27 - Section 45

Item 27 would amend section 45 of the Online Safety Act, which contains the simplified outline to Part 6 of the Act. The amendments make it clear that infringement notices, enforceable undertakings and injunctions, are enforcement powers that are contained in Part 6 of the Act.

Item 28 - Subsection 46(3)

Item 28 would amend current subsection 46(3) to extend jurisdiction to the Federal Court of Australia, in relation to enforcing a civil penalty provision.

The effect of this is that both the Federal Circuit Court of Australia, and the Federal Court of Australia will be relevant courts for the purposes of Part 4 of the Regulatory Powers Act. This means that the Commissioner can seek to enforce a civil penalty provision in either of these courts, ensuring that matters can be heard at the lowest level appropriate and that workload is spread between multiple courts.

Item 29 - Subsection 46(3)

Item 29 would make a consequential amendment to subsection 46(3) to reflect that both the Federal Circuit Court of Australia, and the Federal Court of Australia, are relevant courts for the purposes of Part 4 of the Regulatory Powers Act.

Item 30 - After section 46

Item 30 would insert proposed section 46A into the Online Safety Act which extends the operation of Part 5 of the Regulatory Powers Act to a contravention of proposed sections 44B, 44G, and 44K . Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to the listed provisions.

The proposed section would provide that a member of the staff of the Australian Communications and Media Authority (ACMA), who is authorised in writing by the Commissioner, is an infringement officer. Under the Regulatory Powers Act, an infringement officer may give a person an infringement notice if the officer believes on reasonable grounds that the person has contravened an infringement notice provision. The Regulatory Powers Act also sets out what information must be included in the infringement notice.

In these circumstances, the amount of the infringement notice for a single contravention for an individual would be 12 penalty units ($2,520) and for a body corporate, 60 penalty units ($12,600).

The proposed section provides that the relevant chief executive officer is the Commissioner. Under Part 5 of the Regulatory Powers Act, the relevant chief executive officer is, among other things, able to extend time for payment of an infringement notice, and withdraw an infringement notice.

The relevant chief executive officer may, in writing, delegate any or all of his or her powers and functions under Part 5 of the Regulatory Powers Act to a person who is a member of the staff of the ACMA, and is an SES employee or an acting SES employee. It is considered that SES officers are an appropriate level to which these powers can be delegated, as the seniority of these officers reflects the significant nature of these powers.

It is noted that there is no provision permitting a delegate to sub-delegate the power, and, accordingly, the standard position in paragraph 34AB(1)(b) of the Acts Interpretation Act 1901 applies. That is, a delegate cannot sub-delegate a power or function, unless there is a contrary intention evinced in the legislation.   

A delegate must comply with any directions of the relevant chief executive. This reflects that the power being exercised is that of the relevant chief executive, and delegates should exercise the relevant chief executive’s powers in accordance with any directions.

The provision makes it clear that Part 5 of the Regulatory Powers Act extends to every external Territory of Australia, and to acts, omissions, matters and things outside of Australia.    

Item 31 - Subsection 47(1)

Item 31 would amend subsection 47(1) to make it clear that proposed sections 44B, 44G, and 44K are enforceable under Part 6 of the Regulatory Powers Act. Part 6 of the Regulatory Powers Act creates a framework for accepting enforceable undertakings in relation to a contravention of the listed provisions.

The effect of this amendment is that the Commissioner would be able to accept an enforceable undertaking in relation to complying with the prohibition on the non-consensual sharing of an intimate image, a remedial direction from the Commissioner, or a removal notice issued by the Commissioner.  The Commissioner can apply to a relevant court to enforce that undertaking, and the court has powers to make various orders including: directing the person to comply with the undertaking; directing the person to pay compensation to another person for loss or damage suffered; and any other order that the court considers appropriate.

Being able to accept, and enforce, undertakings in a court, is another enforcement mechanism the Commissioner can use, in appropriate circumstances. For example, there have been several contraventions of the requirement to comply with a removal notice within the specified timeframe, the Commissioner could accept an undertaking in the future that the person or provider would comply with any removal notice within the required timeframe.       

Item 32 - Subsection 47(2)

Item 32 would make consequential amendments to subsection 47(2), reflecting that proposed sections 44B, 44G, and 44K would be enforceable under Part 6 of the Regulatory Powers Act. 

Item 33 - Subsection 47(3)

Item 33 would amend current subsection 47(3) to extend jurisdiction to the Federal Court of Australia, in relation to enforcing an enforceable undertaking.

The effect of this is that both the Federal Circuit Court of Australia, and the Federal Court of Australia will be relevant courts for the purposes of Part 6 of the Regulatory Powers Act. This means that the Commissioner can seek to enforce an enforceable undertaking in either of these courts, ensuring that matters can be heard at the lowest level appropriate and that workload is spread between multiple courts.

Item 34 - Subsection 47(3)

Item 31 would make a consequential amendment to subsection 47(3) to reflect that both the Federal Circuit Court of Australia, and the Federal Court of Australia, are relevant courts for the purposes of Part 6 of the Regulatory Powers Act.

Item 35 - Subsections 47(3) and (4)

Item 35 would make consequential amendments to subsections 47(3) and 47(4), reflecting that proposed sections 44B, 44G, and 44K would be enforceable under Part 6 of the Regulatory Powers Act. 

Item 36 - At the end of subsection 48(1)

Item 36 would amend subsection 48(1) to make it clear that proposed sections 44B, 44G, and 44K are enforceable under Part 7 of the Regulatory Powers Act, which creates a framework for the seeking of injunctions in relation to a contravention of the listed provisions.

The effect of this amendment is that the Commissioner would be able to seek an injunction in relation to complying with the prohibition on the non-consensual sharing of an intimate image, a remedial direction from the Commissioner, or a removal notice issued by the Commissioner. For example, if a person is threatening to post an intimate image, the Commissioner may seek an injunction from the Court requiring the person to refrain from posting the image.

Item 37 - Subsection 48(3)

Item 37 would amend current subsection 48(3) to extend jurisdiction to the Federal Court of Australia, in relation to seeking an injunction.

The effect of this is that both the Federal Circuit Court of Australia, and the Federal Court of Australia will be relevant courts for the purposes of Part 7 of the Regulatory Powers Act. This means that the Commissioner can seek an injunction in either of these courts, ensuring that matters can be heard at the lowest level appropriate and that workload is spread between multiple courts.

Item 38 - Subsection 48(3)

Item 38 would make a consequential amendment to subsection 48(3) to reflect that both the Federal Circuit Court of Australia, and the Federal Court of Australia, are relevant courts for the purposes of Part 7 of the Regulatory Powers Act.

Item 39 - At the end of section 88

Item 39 would amend section 88 to provide that the Administrative Appeals Tribunal has jurisdiction to review, on the merits, a decision of the Commissioner to give a removal notice under proposed sections 44D, 44E or 44F, or a decision of the Commissioner to give a remedial direction under section 44K.

The effect of this is that a person can seek merits review at the Administrative Appeals Tribunal of either of these decisions. In relation to administrative decisions, it is good policy to provide the opportunity for independent review on the merits in relation to decisions that affect the rights and interests of individuals, and these amendments achieve this.

Item 40 - At the end of subsection 89(1)

Item 40 would make an amendment to section 89 to make it clear that civil proceedings do not lie against a person in respect of loss, damage or injury suffered by a person, in relation to the following acts done in good faith:

·          A complaint made to the Commissioner under proposed section 19A.

·          An objection notice given to the Commissioner under proposed section 19B.

·          Information given to the Commissioner in connection with an investigation into a complaint under section 19C.

·          Information given to the Commissioner in connection with the consideration of an objection notice under section 19D.

The effect of this amendment is that civil proceedings cannot be instituted against a person for the making of a complaint that an intimate image has been shared without consent, or for lodging of an objection notice in relation to an intimate image, if those actions were done in good faith. Civil proceedings also cannot be instituted against a person for co-operation with the Commissioner in relation to an investigation of a complaint, or a consideration of an objection notice, if those actions were done in good faith.

Item 41 - At the end of subsection 89(2)

Item 41 would amend section 89 to make it clear that civil proceedings do not lie against a person in respect of anything done by the person in compliance with a removal notice. That is, if a person has been issued with a removal notice, another person cannot institute civil proceedings against the first person for steps undertaken to comply with that notice.

Item 42 - Paragraph 92(1)(a)

Item 42 would amend paragraph 92(1)(a) to insert a reference to designated internet service in that provision. The effect of this amendment is that if the Commissioner becomes aware of particular material provided on a designated internet service, and is satisfied the material is of a sufficiently serious nature to warrant referral to a law enforcement agency, the Commissioner may notify the material to specified law enforcement bodies.

Item 43 - Paragraph 93(a)

Item 43 would amend paragraph 93(a) to insert a reference to designated internet service in that provision. The effect of this amendment is that the Commissioner may defer taking action in relation to material provided on a designated internet service in circumstances where a member of an Australian police force satisfies the Commissioner that the taking of action by the Commissioner should be deferred until the end of a particular period in order to avoid prejudicing a criminal investigation.

Item 44 - At the end of subsection 94(1)

Item 44 would amend section 94 to make it clear that the Commissioner may make one or more copies of material for the purposes of an investigation under proposed section 19C, a complaint that there has been a non-consensual sharing of an intimate image, or, for the purposes of proposed section 19D, consideration as to whether to issue a removal notice in response to an objection notice given to the Commissioner.

Item 45 - Section 105 (heading)

Item 45 would amend the heading for section 105 to be ‘Provider of social media service, relevant electronic service, or designated internet service’. This reflects that this provision relates to providers of social media services, relevant electronic services, or designated internet services.

Item 46 - Subsections 105(1) and (2)

Item 46 would amend subsections 105(1) and (2) to insert a reference to designated internet service.

The effect of this amendment is that a person will not be a provider of a designated internet service merely because the person supplies a carriage service that enables material to be accessed or delivered on that service. The amendment will also make it clear that a person does not provide a designated internet service if they merely provide a billing service, or a fee collection service, in relation to the designated internet service.

This amendment is required because the prohibition on the non-consensual sharing of intimate images also extends to the sharing of an intimate image on a designated internet service.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SCHEDULE 2--AMENDMENTS to the criminal code act 1995

Schedule 2 contains amendments moved and agreed to in the Senate on 14 February 2018 during committee of the whole consideration of the Bill. The amendments were contained in amendment sheet 8371 and further discussion of the amendments can be found in the Senate Hansard. 

Criminal Code Act 1995

Item 1 - Section 473.1 of the Criminal Code

Item 1 would insert a new definition of intimate image into section 473.1, which is the definition section for Part 10.6 of the Criminal Code Act.

Intimate image would having the meaning given by section 9B of the Online Safety Act, however it would not include an intimate image under subsection 9B(4) of that Act.

Item 2 - After Subdivision D of Division 474 of the Criminal Code

Item 2 would insert new Subdivision DA which contains offences and other provisions relating to use of a carriage service for transmitting intimate images. New Subdivision DA would contain seven new sections.

Proposed section 474.24D would ensure that Subdivision DA is not intended to exclude or limit the concurrent operation of any law of a State or Territory. The effect of this provision is that a law of a State or Territory which creates an offence for the same or similar conduct can operate at the same time with the offences that would be contained in the new Subdivision DA.  

Proposed section 474.24E would create a new offence of using a carriage service to transmit, make available, publish, distribute, advertise or promote material without consent, where that material is an intimate image. The maximum penalty on conviction of this offence is imprisonment for 3 years, and in the case of an aggravated offence, imprisonment for 5 years.

Proposed section 474.24F would create a new offence of using a carriage service to make a threat to, or threatening to use a carriage service to, transmit, make available, publish, distribute, advertise or promote an intimate image of another person. The maximum penalty on conviction of this offence is imprisonment for 3 years, and in the case of an aggravated offence, imprisonment for 5 years.

Proposed section 474.24G would create an offence if a person has possession or control, or produces, supplies, or obtains material which is an intimate image, and the intention is to use that material through a carriage service in contravention of proposed sections 474.24E (using a carriage service for transmitting intimate images) or 474.24F (using a carriage service - making a threat about intimate images). The maximum penalty on conviction of this offence is imprisonment for 5 years, and in the case of an aggravated offence, imprisonment for 10 years.

Proposed section 474.24H sets out for the purposes of this Subdivision, when an offence committed by a person would be an aggravated offence. An offence will be an aggravated offence if the person depicted in the intimate image was under the age of 16 years, or the defendant believed the person to be under 16 years of age.

Proposed section 474.24J provides for defences in respect of an offence against section 474.24E (using a carriage service for transmitting intimate images) or 474.24G (possessing an intimate image for use through a carriage service). Those defences are: public benefit; media activities; duties of law enforcement officer or intelligence or security officers; prohibited content and content filtering technology.

Proposed section 474.24K provides that proceedings against a defendant who allegedly committed the offence while under the age of 18 can only be commenced with the consent of the Attorney-General.     

Item 3 - Subsections 475.1A(1) and (2) of the Criminal Code

Item 3 would make consequential amendments to section 475.1A to reflect the addition of new Subdivision DA into Division 475.

Item 4 - Paragraphs 475.1B(1)(a) and (2)(a) of the Criminal Code

Item 4 would make a consequential amendments to section 475.1B to reflect the addition of new Subdivision DA into Division 475.




[i] Dr Nicola Henry, Dr Anastasia Powell and Dr Asher Flynn, Submission No 13 to the NSW Standing Committee on Law and Justice to the Inquiry into Remedies for the Serious Invasion of Privacy in New South Wales, September 2015, available: https://www.parliament.nsw.gov.au/committees/DBAssets/InquirySubmission/Body/49194/0013%20Dr%20Nicola%20Henry,%20Dr%20Anastasia%20Powell%20and%20Dr%20Asher%20Flynn.pdf