Chapter 5
Committee views and recommendations
5.1
Non-consensual sharing of intimate images is a serious and growing
problem in Australia, facilitated in part by technological advances and
increasing use of social media. Non-consensual sharing of intimate images can
have a significant impact on victim, psychologically and physically, as well as
being damaging to the victim's reputation and standing.
5.2
The committee believes that a range of measures should be implemented to
combat the growing scourge of non-consensual sharing of intimate images. These
measures should include criminal and civil law penalties, public education and
awareness campaigns, and professional training for police.
5.3
The committee's views and recommendations in relation to each of these
areas are set out in this chapter.
Terminology
5.4
Throughout the inquiry submitters and witnesses voiced opposition to the
phrase 'revenge porn' (see chapter 2). 'Revenge porn' is too narrow, suggesting
a particular type of behaviour as opposed to the range of behaviours and
circumstances that involve the non-consensual dissemination of intimate images.
The use of 'revenge' infers that a perpetrator's motive is restricted to that
end, while the use of 'porn' focusses on perceived actions by the victim.
5.5
The committee agrees with these concerns and endorses the
recommendations from various submitters and witnesses about more appropriate
terms, such as 'non-consensual sharing of intimate images'. Changing the words
and ways in which non-consensual sharing of intimate images is discussed should
help address issues with community perceptions about it, particularly
persistent victim blaming. The committee suggests it is vital that any
legislation addressing and formal documentation discussing non-consensual
sharing of intimate images use phrases such as this, noting the importance of
the definition given to words such as 'sharing' and 'intimate' (see chapter 3).
Recommendation 1
5.6
The committee recommends that Australian governments use the phrase 'non-consensual
sharing of intimate images' or similar when referring to the phenomenon
colloquially known as 'revenge porn' in legislation and formal documentation.
5.7
However, the committee acknowledges that using 'non-consensual sharing
of intimate images' in legislation and formal documentation will only go some
way to changing community perceptions about non-consensual sharing of intimate
images. Eradicating the use of the phrase 'revenge porn' in colloquial language
is a more difficult challenge. The committee expects that community
perceptions and language about non-consensual sharing of intimate images will
take some time to change: greater education and awareness of the problem and
its impact on victims will play an important role in this regard.
Legislative change
5.8
As discussed in chapters 2 and 3, the committee heard overwhelming
support from submitters and witnesses for legislative change, including at the
Commonwealth level. The committee highlights that the Commonwealth Director of
Public Prosecutions (CDPP) and the Australian Federal Police (AFP) were
supportive of legislation to address non-consensual sharing of intimate images,
while the Attorney-General's Department (AGD) advised that it has been
considering the issue for some time.
5.9
The committee is particularly concerned about the limited avenues at
criminal law for victims of non-consensual sharing of intimate images to
currently seek redress. The present situation is unacceptable: victims of non-consensual
sharing of intimate images should not be further disempowered and damaged by an
inability to pursue alleged perpetrators.
5.10
The committee heard some criticism of police in respect of their current
responses to allegations; while this is of concern, and the committee believes
better education and training for police are warranted, the committee also
appreciates that in most Australian jurisdictions police have limited powers to
investigate allegations of non-consensual sharing of intimate images.
Legislating offences related to non-consensual sharing of intimate images in
all Australian jurisdictions will equip police to investigate and bring to
justice perpetrators of non-consensual sharing of intimate images. The
committee also notes the remarks of the AFP that legislation criminalising non-consensual
sharing of intimate images should not be too prescriptive given non-consensual
sharing of intimate images arises in a range of 'places and crime types'.[1]
5.11
Submitters and witnesses also told the committee that criminal offences
have the effect of informing the community that certain behaviours are
unacceptable and, in this instance, that non-consensual sharing of intimate
images will not be tolerated. The committee believes that non-consensual
sharing of intimate images offences, while but one way in which the community's
opposition to it can be communicated, are an important way of doing so.
5.12
In respect of the technical drafting of non-consensual sharing of
intimate images offences, a number of submitters and witnesses, particularly
those providing victim support services and community legal services, discussed
in detail the centrality of consent and the concepts of 'intent' and 'harm'
(see chapters 2 and 3).
5.13
The committee heard differing opinions as to whether non-consensual
sharing of intimate images offences should include 'an intent to cause harm' and
'proof of harm' elements. Some submitters and witnesses argued that the
perpetrator's intention to cause harm and whether or not a victim is actually
harmed by non-consensual sharing of intimate images are irrelevant; others
claimed that the inclusion of such elements is important to give clarity to the
circumstances in which offences apply. Many submitters and witnesses emphasised
that however legislation is drafted, the victim's explicit consent (or absence
thereof) must be the determining factor.
5.14
The committee is persuaded by the arguments for consent to be the
central tenet of any non-consensual sharing of intimate images offences. The
committee is similarly convinced that non-consensual sharing of intimate images
offences should not include 'an intent to cause harm' or 'proof of harm'
elements: the perpetrator's intentions and whether or not the victim is harmed
are not pertinent; the acts of non-consensually taking and/or sharing intimate
images should be sufficient for an offence to have been committed. With regard
to 'recklessness', as advised by the CDPP (see chapter 3), the committee
believes that a recklessness element should be included in non-consensual
sharing of intimate images offences.
5.15
The committee does not propose to make specific recommendations in
respect of legislative definitions of, for example, 'recording', 'sharing' and
'intimate'. The committee does, however, encourage Australian governments to consider
the issues raised during the course of this inquiry (see chapter 3) and urge
them to give due consideration to the legislative definitions for key words in non-consensual
sharing of intimate images offences, with particular focus on capturing the
wide range of relevant behaviours and the various ways in which images are or
might in the future be shared. The committee also suggests that consideration
is given to the recommendation by the Law Council of Australia (LCA) and others
that consent for intimate images to be taken or disseminated during the course
of a relationship should terminate upon the conclusion of the relationship.
Similarly, issues around the application of offences to minors must be taken
into account by the Commonwealth and state and territory governments when
legislating in this area.
5.16
The committee heard that the enactment of offences for non-consensual
sharing of intimate images by the Commonwealth may not fully address existing
legislative gaps: it is vital that the states and territories also adopt non-consensual
sharing of intimate images offences. As the AFP advised the committee, unified
and uniform legislation across Australia would 'be most helpful for police' and
should substantially address jurisdictional issues within Australia that
currently hinder both victims and police in pursuing allegations of non-consensual
sharing of intimate images. The committee also takes into account concerns
about Commonwealth legislation overriding state and territory legislation, and
the preference that Commonwealth legislation act in conjunction with that in
the states and territories.
5.17
The committee is left in no doubt about the need for legislation and believes
that the Commonwealth must demonstrate leadership in this regard. The committee
recommends that, as a priority, the Commonwealth legislate offences for
recording and/or sharing an intimate image without consent, and for threatening
to take and/or share an intimate image without consent, irrespective of whether
or not those intimate images exist. The committee also recommends that the
states and territories enact the same or substantially similar offences in
their jurisdictions to ensure unified and uniform criminal approaches to non-consensual
sharing of intimate images across Australia.
Recommendation 2
5.18
Taking into account the definitional issues discussed in this report,
the committee recommends 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.
Recommendation 3
5.19
The committee recommends that the states and territories enact
legislation with offences the same or substantially similar to those outlined
in Recommendation 2, taking into account relevant offences enacted by the
Commonwealth government.
Civil remedies
5.20
The committee heard that victims should have access to a range of
remedies, both criminal and civil, when seeking to resolve instances of non-consensual
sharing of intimate images. The committee concurs with Mr Alastair MacGibbon,
Children's eSafety Commissioner, when he stated that 'a series of laws,
civilian and criminal' are needed because 'those different remedies will fit
different situations'.[2]
5.21
The committee also highlights the comments of the AGD that:
criminal justice is only one aspect of the potential response
to technology-facilitated abuse and revenge porn; civil remedies, education and
awareness-raising schemes and the assistance of the community sector all present
additional tools to address this behaviour.[3]
5.22
The committee believes that there is value in a Commonwealth agency
being authorised to issue take down notices outside of a court process, similar
to the OCeSC currently. While the committee has not reached a conclusive view
about whether this is something that the OCeSC should be empowered to do or
whether it would be more appropriately done by another agency, the committee
agrees that take down notices often offer a more expeditious remedy in the
first instance for removing intimate images and affording victims some
protection.
5.23
The committee welcomes the AGD's comments that addressing non-consensual
sharing of intimate images 'requires the continuing goodwill of...private sector
partners' and that:
Service providers...and social media networks have an important
role to play by responding promptly and effectively to reports of offensive
online content, including where that applies to instances of revenge porn.[4]
5.24
The committee does not believe, however, that the government should rely
solely on the goodwill of internet and social media providers. The committee
notes that in some instances internet and social media providers reluctantly
engage in the process of removing intimate images, in part because of the
complexity and cost involved:[5]
the committee suggests that the Canadian approach, where offenders can be
required to pay the costs associated with the removal of images, is worthy of
consideration.
Recommendation 4
5.25
The committee recommends that the Commonwealth government consider
empowering a Commonwealth agency to issue take down notices for
non-consensually shared intimate images.
5.26
The committee is also of the view that the AGD and AFP should continue to
engage with internet and social media providers and platforms to ensure there
is ongoing dialogue about non-consensual sharing of intimate images and
remedies to address it. If there is not already a formal mechanism by which
Commonwealth agencies and internet and social media providers regularly engage on
issues related to non-consensual sharing of intimate images, the committee
recommends that such a mechanism is established.
Recommendation 5
5.27
If not already in existence, the committee recommends that the
Commonwealth government establish a formal mechanism by which Commonwealth
agencies and internet and social media providers regularly engage on issues
relating to non-consensual sharing of intimate images.
5.28
A number of submitters and witnesses advocated for a tort of privacy.
The committee notes the creation of such a tort was recommended by the
Australian Law Reform Commission (ALRC) in 2014.[6]
5.29
While the AGD advised the committee that the Commonwealth government is
not supportive of the establishment of a tort of privacy, the committee notes
the AFP and CDPP's comments in support of such.
5.30
As stated elsewhere in this report, victims are entitled to a range of
avenues through which they can pursue their non-consensual sharing of intimate
images matter. The committee therefore recommends that the Commonwealth
government give further consideration to the ALRC's recommendations regarding
the creation of a tort of privacy. In doing so, the committee acknowledges that
such a statutory cause of action would be restricted to serious invasions of
privacy, as recommended by the ALRC.
Recommendation 6
5.31
The committee recommends that the Commonwealth government give further
consideration to the Australian Law Reform Commission's recommendations
regarding a statutory cause of action for serious invasion of privacy.
Education
5.32
Legislating for non-consensual sharing of intimate images offences
should not occur in isolation as it is one part of a much broader response
required.
5.33
Chapter 4 discussed some of the work undertaken by the Office of the
Children's eSafety Commissioner (OCeSC) and its programs for educating children
and young people about safety and inappropriate behaviour online.
5.34
The committee supports this work by the OCeSC particularly as it
educates and helps protect Australia's young people. The committee hopes that
by educating young people about appropriate online behaviour, those messages
will filter through to their parents, wider family and friends; similarly,
today's young people are Australia's future leaders and decision makers and
instilling in them the importance of appropriate online behaviour will only become
more beneficial as time passes.
5.35
There appears to the committee, however, to be an absence of education
and awareness amongst adults about what constitutes non-consensual sharing of
intimate images and how to deal with it if you are a victim. The committee believes
that there should be a public education and awareness campaign targeted at
adults that seeks to both warn and advise about the legal and non-legal
ramifications from and options for addressing non-consensual sharing of
intimate images. An efficient way of doing so may be empowering and resourcing
the OCeSC and AFP to deliver these services, noting their current work with
children in relation to cybersafety. The states and territories should also
give consideration to implementing public education and awareness campaigns,
and collaborating with the Commonwealth government to do so.
Recommendation 7
5.36
The committee recommends that the Commonwealth government implement a
public education and awareness campaign about non-consensual sharing of
intimate images for adults by empowering and resourcing the Office of the
Children's eSafety Commissioner and the Australian Federal Police to build on
their existing work with children in relation to cybersafety.
Professional training
5.37
The committee acknowledges that non-consensual sharing of intimate
images may fall under one of a number of crime types, such as cybercrime, sex
crime and domestic violence, and that police in Australia currently encounter
barriers to pursuing allegations of non-consensual sharing of intimate images
related to their capabilities, resourcing and the potential absence of relevant
criminal offences.
5.38
As discussed in chapter 4, victims' support services told the committee
that victims encounter a variety of responses from police when reporting
allegations of non-consensual sharing of intimate images, ranging from
proactive and helpful through to dismissive.
5.39
The committee has recommended that the Commonwealth, states and
territories enact non-consensual sharing of intimate images offences; the
committee expects that this will empower police to investigate allegations of non-consensual
sharing of intimate images in a consistent and comprehensive way which has not
been previously available to them. It should also go some way to improving
police responses to victims reporting non-consensual sharing of intimate images.
5.40
In addition, the committee believes that police should be required to
participate in professional training in relation to non-consensual sharing of
intimate images and particularly any new offences enacted in the relevant
jurisdiction. The committee acknowledges that police working in certain fields
(for example cybercrime and domestic violence) may be more likely to encounter
allegations of non-consensual sharing of intimate images; however, given the
extent of non-consensual sharing of intimate images and the diverse behaviours
involved, the committee recommends that all police undertake at a minimum basic
training in relation to non-consensual sharing of intimate images.
Recommendation 8
5.41
The committee recommends that that all Australian police undertake at a
minimum basic training in relation to non-consensual sharing of intimate images,
in particular any new offences in the relevant jurisdiction.
Senator
Glenn Lazarus
Chair
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