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Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2017



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ISSN 1328-8091

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BILLS DIGEST NO. 74, 2017-18 7 FEBRUARY 2018

Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2017 Monica Biddington Law and Bills Digest Section

Contents

Purpose of the Bill ............................................................... 3

Structure of the Bill ............................................................. 3

Background ......................................................................... 3

Current Commonwealth legislation ........................................ 4

State and territory legislation .................................................. 5

Overseas jurisdictions .............................................................. 6

Gaps in legislative coverage .................................................. 6

Consultation process on possible legislative change ............ 7

Committee consideration .................................................... 7

Senate Standing Committee for the Scrutiny of Bills .............. 8

Policy position of non-government parties/independents ..... 8

Position of major interest groups ......................................... 8

Financial implications .......................................................... 8

Statement of Compatibility with Human Rights .................... 8

Parliamentary Joint Committee on Human Rights .................. 8

Key issues and provisions..................................................... 8

Operation of the Complaints System .................................... 10

Objection Notice Scheme ...................................................... 10

Removal Notice ..................................................................... 11

Compliance with removal notice ......................................... 11

Remedial direction .............................................................. 11

Infringement notices for prescribed provisions .................. 12

Civil penalty provisions .......................................................... 12

Other provisions ................................................................ 13

Exempt post......................................................................... 13

Date introduced: 6 December 2017

House: Senate

Portfolio: Communications and the Arts

Commencement: The day after Royal Assent

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at

February 2018.

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Good faith provision ............................................................ 13

Concluding comments ....................................................... 14

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Purpose of the Bill The purpose of the Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2017 (the Bill) is to amend the Enhancing Online Safety Act 2015 (Online Safety Act) and the Broadcasting Services Act 1992 (BSA) to establish a complaints and objections system for the sharing of intimate images without the consent of the person depicted in those images. To achieve this purpose, the Bill will:

• prohibit the posting, or a threat to post, of an intimate image without consent on a social media service, relevant electronic service, or a designated internet service (item 26, proposed section 44B of the Online Safety Act)

• establish a complaints and objection system in relation to the non-consensual sharing of intimate images to be administered by the eSafety Commissioner (the Commissioner) (item 24, proposed sections 19A and 19B)

• 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 (item 26, proposed sections 44D, 44E and 44F)

• 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 (item 26, proposed section 44K)

• 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 and

• 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 contravention of the civil penalty provisions.

Structure of the Bill The Bill is presented in one Schedule with one item making a consequential amendment to the BSA (item 1) and the remaining 45 items making amendments to the Online Safety Act, including new definitions in section 4 (items 4-11).

Background There are existing criminal offences of stalking, harassing and assault in all state and territory legislation. The majority of Australian states and territories have recently introduced legislation that specifically targets the conduct known as revenge porn, that is, the sharing of intimate images online without the consent of the person depicted in the images.1 A table is provided below, outlining the relevant state and territory legislation.

In May 2017, RMIT University published research entitled Australians’ Experiences of Image-Based Abuse, which found that one in five Australians have experienced ‘image-based abuse’. The authors explained the terminology as:

…a form of abuse, whether that abuse occurs through an interpersonal violation, breach of trust, exploitation, public shaming and/or harassment … [Further] Government agencies, such as the Australian Office of the e-Safety Commissioner, are likewise increasingly replacing the term ‘revenge pornography’ with ‘image-based abuse’, and are beginning to recognise the serious nature, scope and impact of such harms.

2

The research identified the following key survey findings:

• victims of image-based abuse experience high levels of psychological distress

• women and men are equally likely to report being a victim

• perpetrators of image-based abuse are most likely to be male, and known to the victim

1. See, for example, Crimes (Intimate Image Abuse) Amendment Bill 2017 (ACT). 2. Dr N Henry, Dr A Powell and Dr A Flynn, Not just ‘revenge pornography’: Australian’s experiences of image-based abuse: a summary report, RMIT University, Melbourne, May 2017, pp. 3-4.

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• men and young adults are more likely to voluntarily share a nude or sexual image of themselves

• women are more likely than men to fear for their safety due to image-based abuse

• abuse risk is higher for those who share sexual selfies, but they are not the only victims

• one in two Australians with a disability report being a victim of image-based abuse

• one in two Indigenous Australians report image-based abuse victimisation

• image-based abuse victimisation is higher for lesbian, gay and bisexual Australians

• young people aged 16 to 29 years are also at higher risk of image-based abuse and

• four in five Australians agree it should be a crime to share sexual or nude images without permission.3

Image-based abuse can exist as a one-off occurrence, or evolve to become a web of exposure and long term harm and distress to many, as has been recently seen in the discovery of schools and universities’ humiliating webpages.4

Current Commonwealth legislation The Criminal Code Act 1995 (Cth), (the Code) contains a general provision relating to a person’s use of the internet. A person is guilty of an offence under section 474.17 of the Code if they use a carriage service (which includes the internet and like communications) in a way that a reasonable person would regard as being, in all the circumstances, menacing, harassing or offensive.

Whether or not a reasonable person finds certain material or a particular use of a carriage service offensive is an objective decision which is to take into account the following matters listed under section 473.4 of the Code:

• the standards of morality, decency and propriety generally accepted by reasonable adults

• the literary, artistic or educational merit (if any) of the material and

• the general character of the material (including whether it is of medical, legal or scientific character).

This Bill does not propose to amend the existing offence in the Code in any way. Rather, the proposed scheme will complement and operate concurrently with both the broad criminal offence in the Code, and the existing state and territory offences.

3. Ibid., p. 3.

4. E Baker, ‘Revenge porn website targeting Australian women and schoolgirls resurfaces’, The Canberra Times, (online edition), 24 January 2018.

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State and territory legislation The table below provides a snapshot of the legislative landscape relating to revenge porn.

State Legislative provision Type of image Penalty

Federal

Using a carriage service to harass

or cause offence. Section 474.17,

Criminal Code Act 1995 (Cth).

Not specified

Maximum three years'

imprisonment.

ACT

Non-consensual distribution of

intimate images. Section

72C, Crimes Act 1900 (ACT).

Intimate image of a person:

(a) means a still or moving image, in any form —

(i) of a person's genital or anal region; or

(ii) for a female or a transgender or intersex

person who identifies as a female — of the

person's breasts; or

(iii) of the person engaged in a private act; or

(iv) that depicts the person in a sexual manner

or context; and

(b) includes an image, in any form, that has been

altered to appears to show any of the things

mentioned in paragraph (a).

(Defined in section 72A.)

Maximum of three years'

imprisonment.

Maximum of five years if the

image is of a person under

the age of 16 years.

NT

No — but previous government

considered drafting new laws.

NSW

Distribute intimate image without

consent. Section 91Q, Crimes Act

1900 (NSW).

Intimate image means:

(a) an image of a person's private parts, or of a

person engaged in a private act, in circumstances

in which a reasonable person would reasonably

expect to be afforded privacy, or;

(b) an image that has been altered to appear to show

a person's private parts, or a person engaged in a

private act, in circumstances in which a

reasonable person would reasonably expect to be

afforded privacy.

(Defined in section 91N.)

Maximum of three years'

imprisonment.

QLD No.

SA

Distribution of invasive

image/humiliating or degrading

film. Section 26B-C, Summary

Offences Act 1953 (SA).

Invasive image of the person if it depicts the person in

a place other than a public place:

(a) engaged in a private act; or

(b) in a state of undress such that —

(i) in the case of a female — the bare breasts

are visible; or

Maximum of four years'

imprisonment if the image is

of a person under the age of

17 years.

Maximum of two years'

imprisonment in any other

case.

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State Legislative provision Type of image Penalty

(ii) in any case — the bare genital or anal

region is visible.

(Defined in section 91N.)

TAS No.

VIC

Section 41DA — Distribution of

intimate image. Summary

Offences Act 1966 (Vic).

Image is contrary to “community standards of

acceptable conduct”.

Maximum of two years'

imprisonment.

WA

Restraints on respondents,

sections 10G and 61. Restraining

Orders Act 1997 (WA).

Not defined, talks about intimate personal images. Maximum of two years' imprisonment.

Source: T Goldsworthy, ‘Revenge porn laws may not be capturing the right people’, The Conversation, 29 September 2017.

Overseas jurisdictions Similar to Australia’s proposal to directly address the harm of image-based abuse, in November 2017, in the United States Senate, a Bill was introduced to provide that it is unlawful to knowingly distribute a private, visual depiction of an individual’s intimate parts or of an individual engaging in sexually explicit conduct, with reckless disregard for the individual’s lack of consent to the distribution, and for other purposes. A successful prosecution under the proposed offence provision would need to prove that the person knew the victim expected the image to remain private and that sharing the image would harm the victim.5 The criminal offence proposes a penalty of a fine, up to five years’ imprisonment, or both. This Bill would operate concurrently with existing US State offences that exist in many jurisdictions.6 The Criminal Justice and Courts Act 2015 (UK) also creates an offence for a person to disclose a private sexual photograph or film if the disclosure is made without the consent of the depicted person and with the intention of causing that person distress. This could be online behaviour or otherwise.

Gaps in legislative coverage While existing legislation includes a broad, ‘catch-all’ provision for online offence or harassment, there is widespread support for legislative change to acknowledge and deter the non-consensual sharing of intimate images, ‘which can have a significant impact on [a] victim, psychologically and physically, as well as being damaging to the victim’s reputation and standing’.7 However, support for change is not unanimous with academic Terrence Goldsworthy arguing that:

there is insufficient evidence from the current laws’ success rates to justify a move to specific laws. There has also been a failure to show how these new [state and territory] offences are effective in tackling other deficiencies identified in responses to revenge porn offences. These issues include ensuring we have effective victim responses to revenge porn, such as strategies to increase ease of reporting and reduce under-reporting.

8

5. See M Dickey, ‘Senators introduce revenge porn bill’, TechCrunch, 28 November 2017 and United States Senate, ‘Ending Nonconsensual Online User Graphic Harassment Bill, 2017, US Senate, 28 November2017. 6. For further detail see Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the ‘Phenomenon colloquially referred to as “revenge porn”, which involves sharing private sexual images and recordings of a person without their consent, with the intention to cause

that person harm’, The Senate, Canberra, 2016, p.12. 7. Ibid., p.49.

8. T Goldsworthy, ‘Revenge porn laws may not be capturing the right people’, The Conversation, (online edition), 29 September 2017.

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In this vein, social media organisations have responded to the need to manage instances of revenge porn postings with, for example, Facebook inserting a “Report” mechanism for an affected person to initiate the removal of the intimate image.9

Consultation process on possible legislative change Following the Senate Standing Committee on Legal and Constitutional Affairs’ inquiry into the issues (discussed further below) on 23 November 2016, the Minister for Communications, Senator Mitch Fifield, and the Minister for Women, Senator Michaelia Cash, announced that the Government would conduct a public consultation process on a proposed civil penalty regime for the non-consensual sharing of intimate images.10 In May 2017, the Department of Communications and the Arts released a Discussion Paper to seek stakeholder comments on a Civil penalties regime for non-consensual sharing of intimate images.11

Why a civil penalty regime?

A civil penalty regime, instead of new criminal offences, will provide the eSafety Commissioner with broad options to ensure that the needs of vulnerable victims are dealt with promptly and with as little distress as possible. Further, the ability to issue a formal warning to a young person for distributing an intimate image may be a more appropriate action than to charge a person with a criminal offence that could result in a criminal record into adulthood. The proposed scheme would also act as a deterrent regime, where even a threat to post an intimate image of another could make that person liable to a penalty of $105,000. While the proposed scheme is likely to have more implementation and administrative burdens that a criminal offence might, stakeholders including the Law Council of Australia have expressed their support for a variety of enforcement options for victims of image-based abuse.12

Committee consideration On 7 December 2017, the Senate Selection of Bills Committee reported that it had deferred consideration of the Bill to its next meeting.13

However, in 2015-2016 the Senate Standing Committee on Legal and Constitutional Affairs conducted an inquiry into the ‘Phenomenon colloquially referred to as ‘Revenge Porn’, which involves sharing private sexual images and recordings of a person without their consent, with the intention to cause that person harm’ and other matters.14 The Report by that Committee made eight recommendations, including that the Commonwealth government legislate, to the extent of its constitutional power and in conjunction with state and territory legislation, offences for:

• knowingly or recklessly recording an intimate image without consent

• knowingly or recklessly sharing intimate images without consent and

• threatening to take and/or share intimate images without consent, irrespective of whether or not those images exist.15

During the course of the inquiry, the Committee ‘heard overwhelming support from submitters and witnesses for legislative change, including at the Commonwealth level.’16 Later that year, Labor members Tim Watts and Terri Butler introduced a Private Members’ Bill to criminalise the distribution of private sexual material, discussed further below.

9. H McDonald, ‘Facebook warned it faces legal action from “revenge porn” victims’, The Guardian, (Australia edition), 13 January 2018. 10. M Fifield (Minister for Communications) and M Cash (Minister for Women), New eSafety Commissioner appointed in expanded role to combat non-consensual sharing of intimate images, media release, 23 November 2016. 11. Department of Communications and the Arts, Civil penalties regime for non-consensual sharing of intimate images, Discussion paper,

May 2017.

12. Law Council of Australia, Submission to Department of Communications and the Arts, Civil penalties regime for non-consensual sharing of intimate images, 7 July 2017, p. 5. 13. Senate Standing Committee for Selection of Bills, Report, 15, 2017, The Senate, Canberra, 7 December 2017. 14. Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the ‘Phenomenon colloquially referred to as “revenge porn”’,

op. cit.

15. Ibid., recommendation 2, p. vii. 16. Ibid., p. 50.

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Senate Standing Committee for the Scrutiny of Bills The Senate Standing Committee for the Scrutiny of Bills will likely consider the Bill at its next meeting on 8 February 2018. The Bill however, is scheduled for debate in the Senate on Wednesday 7 February and in the House of Representatives on 8 February, leaving little time to consider any matters raised by the Committee.

Policy position of non-government parties/independents A Private Members’ Bill introduced by Labor members Tim Watts and Terri Butler on 17 October 2016 proposed new offences relating to use of a carriage service for private sexual material, carrying penalties of up to five years imprisonment.17 That Bill was removed from the Notice paper in May 2017. While the current Bill proposes a civil penalty, complaint and objection scheme, the policy intent is similar to the Bill proposed by the Labor Party members, that is, to respond to the harm that is caused to a person who has their private sexual material shared without their consent.18

No Senators or Members of Parliament appear to have commented on the current Bill.

Position of major interest groups Submissions made to the 2015 Senate Inquiry into Revenge Porn were supportive of possible legislative options for the Commonwealth. However, there is no comment on the proposed Bill has been identified.

Financial implications The Explanatory Memorandum identifies a potential minor impact on Commonwealth expenditure or revenue by this Bill and further indicates that ‘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’.19

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.20

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee for Human Rights had not commented on the Bill at the date of publication of this Digest.

Key issues and provisions Part 13 of the Broadcasting Services Act (BSA) outlines the information gathering powers by the Australian Communications and Media Authority and the eSafety Commissioner (the Commissioner). Section 169A of the BSA defines what constitutes an ‘investigation’ by the Commissioner for the purposes of Part 13, which in turn determines the purposes for which the Commissioner’s information gathering powers may be employed. The amendment at item 1 of the Bill will insert a reference to section 19C of the Online Safety Act into section 169A of the BSA which will facilitate the Commissioner’s investigation of a complaint where there has been a non-consensual sharing of an intimate image.

The amendments to the Online Safety Act in Schedule 1 to the Bill include amending the simplified outline of the Act, in section 3, to insert proposed subsection 3(ba) to include ‘administering a complaints and objections system for non-consensual sharing of intimate images’. Item 3 will explain that the system will include the following components:

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

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

17. Parliament of Australia, ‘Criminal Code Amendment (Private Sexual Material) Bill 2016 homepage’, Australian Parliament website. 18. Explanatory Memorandum, Criminal Code Amendment (Private Sexual Material) Bill 2016, p. 2. 19. Explanatory Memorandum, Enhancing Online Safety (Non-Consensual Sharing of Intimate Images) Bill 2017, p. 4. 20. The Statement of Compatibility with Human Rights can be found at page 5 of the Explanatory Memorandum to the Bill.

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

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

Items 4-18 insert or amend definitions of relevant terms for the complaints system. Key definitions include:

• ‘Intimate image’ has the meaning given by item 18, proposed subsection 9B(2), which provides that material is an intimate image of a person if:

(a) the material consists of a still visual image or moving visual images; and

(b) the material depicts, or appears to depict:

(i) the person’s genital area or anal area (whether bare or covered by underwear); or

(ii) if the person is female, or a transgender or intersex person identifying as female—either or both of the person’s breasts;

in circumstances in which an ordinary reasonable person would reasonably expect to be afforded privacy.

The definition of intimate image is not limited to sexual acts but extends to any depiction of a person: in a state of undress; using the toilet; showering; having a bath or engaged in any other like activity in circumstances in which an ordinary reasonable person would reasonably expect to be afforded privacy. Further, the definition extends, in proposed subsection 9B(4) to include material that depicts, or appears to depict, the person without attire of religious or cultural significance that they consistently wear in public because of their religious or cultural background, in circumstances in which an ordinary reasonable person would reasonably expect to be afforded privacy. This is an unusual extension of the definition of intimate image, which was proposed, but failed to proceed, by the Greens in the ACT in 2017, as an amendment to the ACT’s Crimes (Intimate Image Abuse) Amendment Bill 2017 (ACT).21

• ‘Consent’ has the meaning given by item 18, proposed section 9E, which provides that consent means consent that is:

(a) express; and

(b) voluntary; and

(c) informed;

but does not include:

(d) consent given by a child; or

(e) consent given by an adult who is in a mental or physical condition (whether temporary or permanent) that:

(i) make the adult incapable of giving consent; or

(ii) substantially impairs the capacity of the adult to give consent.

Another key definition is the term ‘designated internet service’ which is defined in proposed section 9A to mean:

(a) a service that allows end-users to access material using an internet carriage service; or

(b) a service that delivers material to persons having equipment appropriate for receiving that material, where the delivery of the service is by means of an internet carriage service; but does not include a social media service; or a relevant electronic service; or an on-demand program service (for the reason that these are otherwise defined); or a service specified by the Minister in a legislative instrument.

21. K Burgess, ‘Greens soften parts of controversial “revenge porn” bill’, The Canberra Times, 3 August 2017, p.6.

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Under proposed subsection 9A(2) the Minister can explicitly remove from the definition of ‘designated internet services’, services which are not appropriate to be subject to the scheme. Proposed section 9A will ensure that the scheme is suitably applicable to technological advances.

Other terms that are newly defined in by this Bill by item 4 are data storage device, exempt post, hosting service, hosting service provider, internet carriage service (to align with the meaning in Schedule 5 to the BSA), objection notice and on-demand program service.

Part 2 of the Online Safety Act outlines the functions and powers of the eSafety Commissioner. Item 19 will amend existing section 13, which provides a simplified outline of Part 2, to insert the new function of administering a complaints and objections system for non-consensual sharing of intimate images.

The complaints and objections scheme is inserted by item 24, which will insert new Division 3 into Part 2, consisting of new sections 19A-19D.22

Operation of the Complaints System The complaints system is premised on a contravention of proposed section 44B.If a person has reason to believe that another person has posted or has threatened to post an intimate image online of that person without their consent (that is, an apparent contravention of proposed section 44B), the affected person may make a complaint to the Commissioner about the matter. The complainant could be the subject of the image, an authorised person or the parent or guardian of the depicted person (proposed subsection 19A(3)). If the complainant is not able to identify the person who allegedly contravened section 44B, the complainant must make a statement to the Commissioner to that effect (proposed subsection 19A(2)).

Once the intimate image is the subject of a complaint made to the Commissioner under section 19A, the Commissioner must be satisfied that the person did not consent to the posting of the intimate image on the service 23 and that it did not constitute an exempt post (as defined under proposed section 44M and discussed below). The Commissioner may then issue a removal notice requiring:

• the provider of the social media service, relevant electronic service or designated internet service to take all reasonable steps to ensure the removal of the intimate image from the service and do so within 48 hours after the notice was given to the provider, or such longer period as the Commissioner allows (proposed paragraphs 44D(1)(e-g)

• 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 after the notice was given to the end-user, or such longer period as the Commissioner allows (proposed paragraphs 44E(1)(e-g)) or

• the hosting service provider to take all reasonable steps to cease hosting the intimate image and do so within 48 hours after the notice was given to the provider, or such longer period as the Commissioner allows (proposed paragraphs 44F(1)(f-h)).

In addition, or instead of, issuing a removal notice to a person, proposed section 44C will allow the Commissioner to issue a formal warning should a person contravene section 44B. The warning does not seem to have any further effect on subsequent matters but is 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’.24

Objection Notice Scheme If a person has reason to believe that an intimate image of them is, or has been, provided on a social media service, relevant electronic service or a designated internet service, the intimate image did not constitute an exempt post (under proposed section 44M) and there is an Australian connection;25 then the depicted person may give the Commissioner a notice objecting to the provision of the intimate image on the service.

22. Note that the civil penalty provision to enliven the complaints system is proposed section 44B, inserted into new Part 5A by item 26. 23. See proposed paragraphs 44D(1)(d), 44E(1)(d), 44F(1)(d). 24. Explanatory Memorandum, Enhancing Online Safety (Non-Consensual Sharing of Intimate Images) Bill 2017, p. 33.

25. That is, the depicted person is ordinarily resident in Australia; or the end-user is ordinarily resident in Australia; or the intimate image is hosted in Australia by a hosting service (proposed paragraph 19B(1)(d)).

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The Explanatory Memorandum outlines that:

a person may give an objection notice to the Commissioner even if the depicted person consented to the posting of the 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.

26

In a practical sense, an objection notice may be used when a person initially gave consent to the image being shared and then later withdrew that consent following a relationship breakdown or a change of mind. However, the operation of the objection notice provision is not determined by whether or not there was consent. Where a person is depicted in an intimate image that has been provided on a service, and there is a nexus with Australia27, then the person can give the Commissioner an objection notice which can lead to the Commissioner ordering the removal of the image. Given that the Commissioner may investigate complaints under proposed section 19A, but not objections, it would seem possible that a person could inundate the Commissioner with objection notices and the Commissioner has only discretion whether or not to issue a removal notice solely based on the contents of the objection notice. The Commissioner is required to give written notice of a refusal28 but this does not necessarily mean that the Commissioner must give reasons as to why a removal notice is not issued, in response to an objection notice.

Removal Notice Under Division 3 of proposed Part 5A of the Online Safety Act, a removal notice can be given to provider of a social media service, relevant electronic service or designated internet service, end-user, or hosting service provider. The removal notice must relate to an intimate image of a person that has been posted on a prescribed service by an end-user, and that image must be the subject of a complaint or objection notice given to the Commissioner. Further, the Commissioner must be satisfied that the person did not consent to the posting of the intimate image (for complaints made under proposed section 19A) and posting it did not constitute an exempt post. The Commissioner may then give the provider of the service a written notice, requiring the provider to take all reasonable steps to ensure the removal of the intimate image from the service and to do so within 48 hours after the notice was given to the provider; or such longer period as the Commissioner allows (proposed sections 44D, 44E and 44F).

Compliance with removal notice A person must comply with a requirement under a removal notice to the extent that the person is capable of doing so. A contravention of this provision, proposed section 44G, results in a maximum penalty of 500 penalty units. This is equal to $105,000 for individuals and $525,000 for a body corporate.29 The Explanatory Memorandum justifies this penalty amount on the grounds that ‘it reflects that the failure to comply with a removal notice can cause significant distress and harm in itself.’30

Remedial direction If a person is in contravention of section 44B (the civil penalty provision), proposed section 44K will allow the Commissioner to give the person a written direction requiring the person to take specified action directed towards ensuring that the person does not contravene section 44B in the future. Failure to take this action will result in a civil penalty of a maximum 500 penalty units (proposed subsection 44K(2)).31

Item 39 will amend section 88 to provide that an application may be made to the Administrative Appeals Tribunal for a review of a decision of the Commissioner under section 44D, 44E or 44F to give a removal notice.

26. Explanatory Memorandum, Enhancing Online Safety (Non-Consensual Sharing of Intimate Images) Bill 2017, p. 29. 27. See proposed section 19B. 28. See proposed subsections 44D(3), 44E(3), 44F(3). 29. Section 4AA of the Crimes Act 1914 provides that a penalty unit is equal to $210. Subsection 46(1) of the Online Safety Act provides that civil

penalty provisions in that Act are enforceable under Part 4 of the Regulatory Powers Act. Paragraph 82(5)(a) of the Regulatory Powers Act provides that the maximum penalty that may be imposed on a corporation is five times the maximum penalty specified in the civil penalty provision. 30. Explanatory Memorandum, Enhancing Online Safety (Non-Consensual Sharing of Intimate Images) Bill 2017, p. 36. 31. The Explanatory Memorandum erroneously states that the provision allows the Minister to give a person a remedial direction, instead of the

Commissioner: Explanatory Memorandum, Enhancing Online Safety (Non-Consensual Sharing of Intimate Images) Bill 2017, p. 37.

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Infringement notices for prescribed provisions Further civil penalty alternatives are proposed by proposed section 46A outlining that sections 44B, 44G, and 44K are subject to an infringement notice under Part 5 of the Regulatory Powers Act, which allows an infringement officer to issue an infringement notice if the officer reasonably believes that a relevant provision has been contravened.32 The infringement officer for proposed sections 44B, 44G, and 44K is a member of the staff of the Australian Communications and Media Authority who is authorised by the Commissioner (proposed section 46A(2)). The amount of the penalty payable under an infringement notice is determined by section 104(2) of the Regulatory Powers Act, which states that unless the Act expressly provides otherwise, the amount to be stated in the infringement notice for the alleged contravention of the provision is the lesser of one-fifth of the maximum penalty that a court could impose, or 12 penalty units where the person is an individual or 60 penalty units where the person is a body corporate. The latter will apply to this infringement notice scheme, bringing the amount to $2,520 for an individual or $12,600 for a body corporate.

Additional enforcement powers are also included in the Bill, including enforceable undertakings and injunctions (items 31 and 36), as per Parts 6 and 7 of the Regulatory Powers Act respectively. The powers will allow the Commissioner to accept and enforce undertakings relating to compliance and allow the Commissioner to apply to the Federal Circuit Court of Australia or Federal Court of Australia for an order relating to a breach of the undertaking. Similarly the Commissioner can apply for an injunction in relation to a threat to contravene a prohibition or a failure to comply with a removal notice or direction.

Civil penalty provisions The penalty provisions in the Bill are expressly civil penalties to encourage people to refrain from sharing intimate images without consent and to encourage compliance with the complaints and objections system. If a person is found to have breached the provisions, there is no criminal record for that person.

Proposed subsection 44B(1) creates a civil penalty for a person to post, or make a threat to post, an intimate image of another person on:

(a) social media service

(b) a relevant electronic service or

(c) a designated internet service

if either person is ordinarily resident in Australia.

Importantly, proposed subsection 44B(2) makes it explicit that subsection (1) does not apply if the second person consented to the posting of the image by the first person. In a practical example, if a third person obtains the image (either directly or indirectly from the first person’s post), and then proceeds to re-post it without the consent of the person depicted in the intimate image, then that third person could be liable under the provision where the initial first person cannot.

Proposed subsection 44B(3) notes that subsection 44B(1) does not apply if the intimate image is of another person without particular attire of religious or cultural significance and the first person did not know that because of the second person’s religious or culture background that the second person consistently wears that attire whenever the second person is in public. The Explanatory Memorandum notes that 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’.33 Proposed subsection 9B(4) explicitly covers the depiction of a person without attire of religious or cultural significant as an intimate image if that person consistently wears that attire, to recognise that ‘an image of a person without particular religious or cultural attire that they consistently wear, can cause significant harm to the person’.34

A contravention of the proposed civil penalty provision will attract a maximum penalty of 500 penalty units. Under the Crimes Act 1914, a penalty unit in a law of the Commonwealth is equivalent to $210, which means the maximum penalty that can be imposed on an individual under this provision is $105,000. Under the Regulatory Powers Act the maximum penalty that may be imposed on a corporation is five times the maximum penalty

32. Section 99 of the Regulatory Powers (Standard Provisions) Act 2014. 33. Explanatory Memorandum, Enhancing Online Safety (Non-Consensual Sharing of Intimate Images) Bill 2017, p. 32. 34. Ibid., p. 23.

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specified in the civil penalty provision, which is $525,000 for this provision. The Explanatory Memorandum justifies this penalty amount as reflecting ‘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’.35

The use of the word ‘post’ is not used across all technology platforms but is a defined term in section 7 of the Act. Item 5 of the Bill will amend the definition to include designated internet services to explicitly provide that for the purposes of the Act, ‘material is posted on a social media service, relevant electronic service or designated internet service by an end-user if the end-user causes the material to be accessible to, or delivered to, one or more other end-users using the service’. This definition would cover words frequently used synonymously with post such as share, tweet, upload, publish and snap.

Proposed section 44G is another civil penalty in the scheme (outlined above) which will apply when a person breaches the requirements of a removal notice. The maximum penalty is 500 penalty units.

Other provisions Exempt post Proposed section 44M defines an exempt post as a post that:

• is necessary for enforcing an Australian law

• is for the purposes of court or tribunal proceedings

• is for a genuine medical or scientific purpose

• an ordinary reasonable person would consider acceptable, having regard to the following matters:

(i) the nature and the content of the intimate image

(ii) the circumstances in which the intimate image was posted

(iii) the age, intellectual capacity, vulnerability or other relevant circumstances of the depicted person

(iv) the degree to which the posting of the intimate image affects the privacy of the depicted person

(v) the relationship between the end-user and the depicted person

(vi) whether the depicted person has died, and if so, how much time has elapsed since the depicted person’s death

(vii) any other relevant matters

• is posted by the Commissioner or an officer of ACMA and was in connection with the exercise of a power or the performance of a function under the Online Safety Act or

• meets a requirement specified by the Minister in a legislative instrument (proposed subsection 44M(1)).

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’.36

Good faith provision Section 89 of the Act offers protection from civil proceedings against a person in respect of loss, damage or injury of any kind suffered by another person because of prescribed acts done in good faith. Item 40 will amend this section to include that the follow acts are similarly protected:

• the making of a complain under section 19A

• the giving of an objection notice under section 19B

35. Explanatory Memorandum, Enhancing Online Safety (Non-Consensual Sharing of Intimate Images) Bill 2017, p. 32. 36. Ibid., p. 38.

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• the making of a statement to, or the giving of a document or information to, the Commissioner in connection with an investigation under section 19C and

• the making of a statement to, or the giving of a document or information to, the Commissioner in connection with a consideration under section 19D.

Concluding comments The Bill offers a rigorous regime that will address the harm that can come as a consequence of a person posting an intimate image of another, both with and without that person’s consent. While there are existing arrangements at the state and territory levels that criminalise conduct associated with revenge porn, the Commonwealth complaints and objections regime will provide another avenue for victims to take action. The costs of implementing and administering the scheme need to be considered through the normal Budget processes.

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