Thu, 16 Aug - 13:14
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Second Reading Speech: Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2018

I present the explanatory memorandum to this bill and move:

That this bill be now read a second time.

The Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2018 implements the government's commitment to take strong action 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 relevant electronic service, a designated internet service or a social media 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 behaviour is colloquially referred to as 'revenge porn' or 'image based abuse'.

Intimate images might be obtained with or without the consent of the subject and can come from a variety of different sources including recordings from hidden devices, hacking into personal electronic storage such as computers, hard drives, cloud storage or email accounts, images shared with an individual with consent and subsequently distributed without consent, or images doctored to falsely portray an individual.

The sharing of images can occur over various electronic services including email, text or multimedia messaging, social media services, websites including mainstream pornography sites, message boards and forum websites, or websites specifically designed to host images shared without consent.

The reasons for non-consensual sharing of intimate images are varied. For example, it can often occur as a result of the former partner of a victim seeking revenge, or it can also involve acquaintances or complete strangers distributing the images either maliciously or simply because they foolishly think it might be a fun thing to do. However, in the most part the practice is generally intended to cause harm, distress, humiliation and embarrassment, whether through the actual sharing of intimate images or through the threat to share. Often such threats are made in an attempt to control, blackmail, coerce, bully or punish a victim. Other motives might include sexual gratification, entertainment, social notoriety and financial gain.

During the government's consultation about this bill we have heard that the psychological impact on victims can be significant and can have negative implications which affect their reputation, family, employment, social relationships and even personal safety.

The need for government action

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

According to a report published in May 2017 by the Royal Melbourne Institute of Technology University, one in five Australians, one in two Australians with a disability and one in two Indigenous Australians have experienced the non-consensual sharing of intimate images.

Previously the impacts of intimate image distribution were limited by the restrictions of the physical world. However, as noted by academics from Bond University, 'As a result of movement from the physical to the digital world, globalisation and society's reliance on technology, many more of our lifestyle activities are conducted in the digital world.' The ubiquity of internet connected mobile devices has changed the way we socialise and increased the speed and reach of information shared online.

Existing laws

There are existing criminal offence provisions available in relation to the non-consensual sharing of intimate images at both the Commonwealth and state level.

Under Commonwealth law, it is an offence to use a carriage service in a menacing, harassing, or offensive way—section 474 of the Criminal Code Act 1995 (Cth) (Criminal Code). The maximum penalty for this offence is three years imprisonment or a fine of up to $37,800, or both. Since 2004 there have been 927 charges proven against 458 defendants under this offence, including a number of cases in relation to image-based abuse conduct.

Victoria, New South Wales, the Australian Capital Territory, South Australia, Western Australia and the Northern Territory have criminalised this behaviour and there have already been a number of prosecutions under existing state laws, including broad laws covering stalking, identity theft and domestic violence. Queensland and Tasmania have indicated their intentions to introduce specific criminal offences for this behaviour.

These laws do differ slightly across jurisdictions, which is why the Commonwealth worked with states and territories through the Council of Australian Governments (COAG) to support a nationally consistent approach to criminal offences relating to the non-consensual sharing of intimate images.

On 20 May 2017, the Law, Crime and Community Safety Council published the National Statement of Principles on the criminalisation of the non-consensual sharing of intimate images. Alignment on key principles is an important initiative as most offences are likely to be prosecuted at the state level.

The Commonwealth continues to work with states and territories on this issue.

Consultation on a proposed civil penalty regime

On 23 November 2016, the government committed to consult on a proposed civil penalty regime targeted at perpetrators who share intimate images without consent and the website and content hosts that are involved.

The government heard from a range of stakeholders, including women's safety organisations, mental health experts, schools and education departments, victims and members of the government's Online Safety Consultative Working Group.

The majority of stakeholders were broadly supportive of a civil penalty regime as it would provide victims a timely, accessible and effective means of redress not available to them through the criminal justice system. The ability to take down intimate images quickly is a primary concern of victims and support services.

Feedback from police indicates that victims are often reluctant to pursue criminal charges against perpetrators, which could result in lengthy and expensive court processes, which in turn has the effect of amplifying the harm inflicted on the victim.

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

The Enhancing Online Safety (Non-Consensual Sharing of Intimate Images) Bill 2018 implements a civil penalty regime for the non-consensual sharing of intimate images.

The bill introduces a new prohibition for the non-consensual posting of, or threat to post, an intimate image on a social media service, relevant electronic service—which includes images shared by email, text or multimedia messages—or a designated internet service. A designated internet service could include websites and peer-to-peer file services.

During the consultation process stakeholders reached consensus that the eSafety Commissioner was best positioned to administer the civil penalty regime. This would utilise existing expertise within the Office of the eSafety Commissioner and build on the eSafety Commissioner's ability to take fast, effective action to have images removed and limit further distribution with minimal additional stress to victims.

Under the civil penalty regime, a victim or someone authorised to act on behalf of the victim can make a complaint to the eSafety Commissioner by phone, in writing or through the commissioner's online complaints portal.

The eSafety Commissioner will have the discretion to action various enforcement mechanisms, such as investigating complaints, issuing infringement notices, accepting enforceable undertakings or seeking injunctions.

The commissioner will also be able to issue formal warnings for breaching the prohibitions and will have the power to issue removal and objection notices to both perpetrators, social media services and content hosts. The bill will introduce a penalty of up to 500 penalty units—up to $105,000 for individuals and up to $525,000 for corporations—for a breach of the prohibition, or failure to comply with a removal notice.

Criminal penalties

In the Senate, the bill was amended by inclusion of provisions to amend the Criminal Code to create new criminal offences for the non-consensual sharing of intimate images and the bill before the chamber today includes specific criminal offences in relation to sharing intimate images without consent.

The government carefully examined the criminal penalties moved by the Centre Alliance in the Senate and identified technical issues with the operation of the amendments, as well as inconsistencies with definitions and provisions in the civil penalty regime currently in the bill. To overcome these difficulties, the government intends to move an amendment to the bill that displaces the amendments agreed by the Senate, and insert new criminal offences that will make a meaningful difference for Australians, and that send a clear message that criminal behaviour will not be tolerated.

National online reporting portal

On 16 October 2017, the government welcomed the pilot launch of a new national portal for reporting instances of non-consensual sharing of intimate images. The portal is a world-first government-led initiative developed by the Office of the eSafety Commissioner and it provides immediate and tangible support to victims of image based abuse.

The portal gives victims a place to seek assistance and report instances of image based abuse. It provides clear and concise information about the practical steps victims can take to reduce the impact of the abuse.

The pilot is designed as a test platform to evaluate the volume and complexity of reports about image-based abuse. The Office of the eSafety Commissioner expects to formally launch the portal later in the year. This civil penalty regime will complement the portal.

Industry efforts in addressing the non-consensual sharing of intimate images

I would like to commend those social media providers and content hosts that have taken steps to address this issue through the development of acceptable use guidelines, the adoption of complaints processes and the investment in technology which removes or prevents further posting of images. Victims have benefited from industry investment and responsiveness.

The government expects that these social media providers and content hosts will build on this good work. Let me highlight that the bill does not prevent victims from approaching these services in the first instance to quickly remove images as opposed to first approaching the Office of the eSafety Commissioner, should that be the wish of a particular victim.

The government also recognises the strong partnerships that many social media services, content hosts, and technology companies have established with the Office of the eSafety Commissioner and envisages that these relationships will continue to be pivotal in protecting Australians against the non-consensual sharing of intimate images.

Conclusion

The bill reflects the government's ongoing commitment to keep Australians safe online.

The non-consensual sharing of intimate images is a significant issue that can have an adverse impact on victims, their families and the Australian community.

The bill will prohibit the non-consensual posting of intimate images and the threat to post intimate images. It will empower the eSafety Commissioner with enforcement capabilities, including the ability to take fast and effective action to have images removed and limit further sharing of images.

The civil penalty regime will complement existing criminal laws and provide another avenue for victims to seek assistance and redress. It will also send a clear message that, in Australia, the non-consensual sharing of intimate images is unacceptable in our society.

On behalf of the government, I express thanks to those stakeholders who provided input, either through submissions or attendance at the public workshops, during the consultation process. I make special mention of those victims who shared painful details about their own personal experiences. Their stories and views were essential in the development of this bill.

I commend this bill to the House.