Tag: Australia

Senate Passes Civil Penalty Regime to Combat Image-Based Abuse

Posted on by Noelle Martin

Today the Senate passed the Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2017 with some surprising, significant amendments. This Bill is part of the Australian Government’s efforts to combat image-based sexual abuse, and was developed from a public consultation into a proposed civil penalty regime (submissions/public workshops) conducted by the Department of Communications and the Arts between May – July 2017.

The Australian Government’s proposed framework is to establish a Commonwealth civil penalty regime to complement:

  • The world-first image-based abuse complaints portal run by the Office of the eSafety Commissioner which provides: information and advice, options for removing and reporting abusive images and videos, and resources and case studies; and
  • Existing Commonwealth and state and territory criminal offences.

The Bill establishes a civil penalty regime that would, as outlined in the explanatory memorandum: “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”, among other things.

It imposes a civil penalty, rather than a criminal liability, of $105,000 for individuals who contravene the prohibition; and a civil penalty of $525,000 for corporations who fail to comply with a ‘removal notice‘ that may require a social media service, relevant electronic service or designated internet service to remove an intimate image from their service.

The Bill also empowers the eSafety Commissioner to investigate complaints, issue formal warnings and infringement notices, provide removal notices and written directions to ensure future contraventions do not occur.

The general consensus from the Senate this week was that Labor, The Australian Greens, and The Nick Xenophon Team welcomed and supported the Turnbull Government’s Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2017. Although as Labor Senator Deborah O’Neill pointed out the “Turnbull government has been dragging its feet and has taken far too long to address this issue of image based abuse. The bill comes in the fifth year of the Liberal government and over two years after Labor’s first proposes, stronger measures”.

While Labor supported the Bill as a step in the right direction, they did not think it went far enough. Labor called on the government to criminalise the non-consensual sharing of intimate images citing:

  • The COAG Advisory Panel on Reducing Violence against Women and their Children who recommended in April 2016 that strong penalties for the distribution of intimate material without consent be developed to “clarify the serious and criminal nature of the distribution of intimate material without consent”;
  • Concerns by the Commonwealth Director of Public Prosecutions in a Senate Inquiry submission by the Senate Legal and Constitutional Affairs References Committee that “there are limitations on existing Commonwealth laws to adequately deal with ‘revenge porn’ conduct”;
  • Research from RMIT and Monash University that 80% of Australians agree “it should be a crime for someone to share a nude or sexual image of another person without that person’s permission”.

The Australian Government responded to the push to criminalise image-based abuse at the Commonwealth level by pointing out that there is already an existing Commonwealth criminal provision in place under s 474.17 – the misuse of a carriage service in the Commonwealth Criminal Code Act 1995. However, this non-specific, existing provision has been highly and widely criticized for its limited applicability to image-based abuse.

As a result, a significant amendment to the civil penalty regime was successful in the Senate today, namely to amend the Criminal Code Act 1995 to include specific criminal offences that would criminalise sharing and threatening to share, intimate images without consent. While this amendment to introduce criminal offences in conjunction with the proposed civil penalty regime may return to the Senate after transmission through the House, this amendment could mean an incredible move toward justice for victims of image-based abuse. 

In the Senate debate the Australian Greens stated that they were disappointed that the Bill was brought on for debate in such ‘haste‘ without allowing for proper scrutiny (e.g. inquiry). Australian Greens Senator Jordon Steele-John pointed out that “many of those consulted are under the impression that they will subsequently be given the opportunity to give their thoughts, opinions and expertise in regard to the outcome.”

In light of the lack of proper scrutiny of this Bill, another amendment to the Bill (sheet 8364 revised) was agreed to being that of the establishment of an independent review (and written report of the review) of the operation of the civil penalty regime within three years after the commencement of the proposed legislation.

In addition, the Australian Greens expressed concern that the Turnbull Government has forgotten to allocate any funding to the cost of running the scheme. While the explanatory memorandum of the Bill provides a ‘Financial Impact Statement‘ which states that the civil penalty regime “might have a minor impact on Commonwealth expenditure or revenue”, and “any additional funding will be considered in the 2018-19 Budget”, there is a level of uncertainty as to extent of funding needed to carry out this scheme. Labor Senator Louise Pratt also highlighted the “minimal resources that the eSafety Commissioner currently has for undertaking this kind of work”. I anticipate that the question of funding will be discussed in the House.

Also, One Nation Senator Hanson talked about her own experiences where she was subjected to the ‘degrading’ and ’embarrassing’ publication of images of a woman who was partially nude and false claims that they were pictures of her. However, Hanson went on to express some dangerous rhetoric about image-based abuse:

Hanson said:

“As the old saying goes, sometimes it takes two to tango. I say to anyone out there who thinks that intimate images of themselves are okay to send via text message or email: ‘Stop it. Keep it for the bedroom.’ People, regardless of your age, it’s in what is told to you by your parents and how you feel about yourself: people have to take responsibility for their own actions. Young people who get requests for intimate images of themselves early in relationships should not do it. Relationships don’t always last, and the person they are with may very well turn nasty on them. I’m very pleased to say that One Nation are a part of putting a dent in this abhorrent trend of shaming people using online methods and intimate images, but I reiterate: I want every man, woman and young adult to know that they too must play a role in ensuring their private photos are kept private.”

This rhetoric by Hanson perpetuates an insidious culture of victim blaming. It sends a harmful message that victims are partly responsible for the horrific and criminal actions of perpetrators. And may discourage victims from speaking out or seeking help because they feel they are to blame.  Perpetrators who share, threaten to share or record intimate images without consent are the ONLY people responsible for image-based abuse – not the victims. Many people – young people and adults – are capable and do engage in the consensual practice of sharing intimate images in a respectful, healthy, safe, loving or intimate way. But image-based abuse is the clear absence of consent and respect. Image-based abuse is perpetrated for various reasons: to humiliate, shame, intimidate, coerce, control, harass and violate victims, it’s also perpetrated for sexual gratification, social notoriety, and financial gain. Our standards and expectations of behaviour shouldn’t be so low that we hold victims partly responsible for the heinous actions of perpetrators.

When it comes to young people, there is a growing problem of young girls feeling pressure to send intimate images of themselves, and this is something that desperately needs to be addressed with respectful education initiatives and programs. We must teach young people about the safe use of technology and associated risks, consent, respect and we must empower young girls to take control of their online usage and agency – but we mustn’t, in any way, send the message that young people who send intimate images of themselves are somehow responsible for the actions of perpetrators who betray their trust or personal privacy.

To echo the sentiments in the Senate: this Bill is a significant step in the right direction, and when taken in conjunction with the amendment to introduce Commonwealth criminal offences, today marks a significant move toward long-awaited justice for victims.

I am extremely grateful to the Australian Government, Senator the Hon. Mitch Fifield, the Department of Communications and the Arts and all the stakeholders involved in the public consultation of this Bill, as well as everyone who has worked hard for years fighting for justice and accountability. Here’s to hoping for a smooth passage in the House. This is fantastic news!

Proposed Commonwealth Civil Penalties for Image-Based Abuse

Posted on by Noelle Martin

The Commonwealth Government has introduced a bill, the Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2017, aimed at prohibiting and deterring persons and content hosts from sharing intimate images without consent.

Under the proposed law, individuals who post, or threaten to post, an intimate image may be liable to a civil penalty of $105,000.  

Social media providers such as Facebook and Twitter; and other content hosts/electronic services/internet services, may be subject to a ‘removal notice’ to remove an intimate image shared without consent from their service. If they fail to comply with a requirement under a ‘removal notice’ they may be liable to a civil penalty of $525,000.

And as an extra layer of deterrent, persons may be given a direction to cease sharing an intimate image without consent in the future. If persons fail to comply with such a direction, they may also be liable to a civil penalty.

My initial thoughts and concerns of the proposed law:

Overall, I am extremely happy to see such strong and hefty fines for perpetrators and content hosts. I am very pleased that the Commonwealth Government has introduced specific, nation-wide proposed laws for combatting image-based abuse. And I am very grateful to the Department of Communications, Senator Mitch Fifield and everyone involved in drafting this Bill, as well as all the stakeholders who participated in the public consultation process.

My main concern is that there is no express provision creating a statutory right for victims to either claim compensation or damages for the harm this can cause them.

Image-based abuse can cause significant harm to victims including emotional distress, violation, shame, humiliation, damage to their reputation and employability and disruption to their employment or education. Victims can fear for their safety and have suicidal thoughts and/or attempt suicide. I know of victims who have had to take time off work because the emotional distress is so significant. I know victims whose studies have been affected by the actions of perpetrators.

In the area of competition and consumer law, companies who breach such laws can be liable to fines, and for affected consumers the law creates a statutory cause of action for damages for loss or damage. Yet, under this proposed civil penalty regime, while perpetrators and content hosts may be liable to very hefty fines, victims won’t have the express statutory right to access damages (or compensation).

The non-consensual sharing of intimate images is a GLOBAL problem, and it is pervasive in our society, with 1 in 5 Australians having experienced image-based abuse according to RMIT and Monash researchers. And according to research by the eSafety Commission –  ‘women are twice as likely to have their nude/sexual images shared without consent than men’, and ‘women are considerably more likely to report negative personal impacts as a result of image-based abuse’. In August this year image-based abuse became a crime in NSW and since then there have already been 20 charges. So, it is highly likely that should this civil penalty regime be enacted, there will be a lot of fines being handed out. Thus, victims should get the justice they deserve for the harm they suffer.

Also, I am happy to see that the definition of ‘intimate image’ in this Bill has extended beyond just material (photos or videos) depicting or appearing to depict a person’s private parts or a person engaged in a private act – but also specifically includes material of a person without their attire of religious or cultural significance, where that person consistently wears particular attire whenever they are in public. This inclusion of religious or cultural factors in the definition of ‘intimate image’ represents an intersectional and culturally sensitive approach to image-based abuse, which is fantastic!

Having said this, I am proud that Australia is taking such strong action. 

 

 

 

 

 

 

 

 

 

Image-Based Abuse: The Phenomenon of Digitally Manipulated Images

Posted on by Noelle Martin

Image-based abuse, colloquially referred to as ‘revenge porn’ (‘revenge porn’ is a misnomer) is an umbrella term. It refers to the non-consensual sharing of intimate images. Contrary to popular belief, there is much more to image-based abuse than the textbook ‘revenge porn’ scenario of the ‘jilted ex-lover sharing nude photos of their ex without consent’. Image-based abuse can be perpetrated in a number of ways, for a number of reasons including (among other things) to control, harass, humiliate, shame, coerce or sexually objectify a victim.

Image-based abuse is the recording, sharing or threatening to record or share, intimate images without consent. ‘Image’ means photo or video. ‘Intimate image’ means an image of a person engaged in a private act, or of a person’s private parts, or of a person in circumstances one would expect to be afforded privacy. ‘Intimate image’ can also mean an image that has been ‘altered’ without consent (digitally manipulated, doctored, photo shopped, etc.) to show a person in any of the above (i.e. engaged in a private act, etc.)

noelle
Photo: Noelle Martin (Me). Source: ABC NEWS (Dave Martin)

To date there is little to no research, data or information on the phenomenon of digitally manipulated images, but this issue is known to academics, researchers, cyber safety experts and women’s groups, and this issue is being incorporated into some recent law reform initiatives in Australia.

As a survivor-turned-advocate of this particular type of image-based abuse (link to my story here). I hope to provide some much needed insight into this form of image-based abuse and the many ways it can occur in the digital age. I will also provide a few tips on what to do if this happens to you.

The insight I provide below cannot tell you the exact extent nor how frequent this phenomenon is occurring, but what I can tell you is that there are horrific online cultures (websites/threads) that exist which host and facilitate the creation and distribution of digitally manipulated images. I can tell you some of its forms and I can tell you that I’m not the only one. Recent comprehensive research conducted in Australia shows that 1 in 5 Australians experience image-based abuse, while this takes into account other forms of this issue too, the prevalence of image-based abuse in general is telling.

Forms of Digitally Manipulated Image-Based Abuse

  1. ‘Face Swapping’ 

This form is where person A’s face is photo shopped onto pornographic material in such a way to suggest that person A is truly depicted in the pornographic material. For me, this form manifested itself when my face was:

  • photo shopped onto images of naked adult actresses engaged in sexual intercourse;
  • photo shopped on images where I was in highly explicit sexual positions in solo pornographic shots;
  • photo shopped on images where I was being ejaculated on by naked male adult actors;
  • photo shopped on images where I had ejaculation on my face; and
  • photo shopped on the cover of a pornographic DVD.

I must also point out that these altered images of me quite literally identified me by name in the image. My name was edited onto the bottom of these images in fancy font to suggest that I was some adult actress.

2. ‘Transparent Edits’

This form of image-based abuse is where a person’s clothes are digitally manipulated to give the effect of it being see-through. For example, a woman’s blouse can be edited so that the appearance of nipples can be seen through their clothes (this happened to me).

3. ‘Cumonprintedpics’

This form of image-based abuse is where a perpetrator has ejaculated onto an image of person A, and has taken an image of their semen (with/without penis) on person A’s image. The perpetrator can take this second image (containing person A’s image and perpetrators penis/semen) and post it online. There are many forums and websites that feature galleries of this kind of image-based abuse (this happened to me).

4. ‘Bodily Alterations’ 

This form of image-based abuse is where a perpetrator digitally manipulates an image of person A by enlarging or enhancing person A’s private parts, particularly the breasts or behind. The alterations are usually very extreme.

5. ‘Juxtapositions’ 

This form of image-based abuse is where a perpetrator doesn’t necessarily alter an image of person A, but instead juxtaposes (places side-by-side) an image of person A next to say, a pornographic image of person B, where person B has a similar-looking appearance/body to person A. The perpetrator can explicitly or implicitly indicate that the pornographic image of person B, is person A.

6. ‘Unidentifiable Alterations’

This form of image-based abuse is where a perpetrator digitally manipulates an image of person A (into highly sexual material) but person A cannot be (objectively) identified at all. In this grey area, I believe that it really doesn’t matter whether person A can be identifiable by third parties, what matters to me is whether person A can identify themselves, because it is EXTREMELY violating and degrading to be the subject of digital manipulation in itself. Plain and simple.

These are some of the many ways the phenomenon of digital manipulation can occur.

What can you do if this happens to you?

Unfortunately, the laws in Australia are limited. The NSW Parliament has recently passed an image-based abuse bill that will criminalise distributing, recording or threatening to distribute or record intimate images (including ‘altered’ images) without consent. South Australia and Victoria have ‘revenge porn’ laws but neither explicitly mention ‘altered’ images or digitally manipulated images. The Federal Government is in the process of potentially creating a civil penalty regime to complement existing criminal penalties, that could potentially cover digitally manipulated images. And the Office of the eSafety Commissioner is working on an online complaints mechanism for images shared without consent.

In the meantime, there are options. The eSafety Women website provides a list of what you can do. You can:

  • Collect all the evidence
  • Report it to the police
  • If you are over 18, you can report it to ACORN(Australian Cybercrime Online Reporting Network)
  • If you are under 18, you can report it to the Office of the eSafety Commissioner.
  • You can contact the webmasters/content hosts and request the removal of the material. (Proceed with caution)
  • Google has a reporting function to remove intimate images that have been shared without consent. Google can remove such images from its search results.
  • Facebook also has the tools to remove intimate images that have been shared without consent from Facebook, Messenger and Instagram.
  • Contact a lawyer and seek advice.
  • Contact local women’s groups/ domestic violence groups.
  • Sign petitions urging Australia to change the law ASAP.

Just remember, you are NOT alone. Wherever you are in the world. ❤ 

If you or someone you know may be suffering from mental illness, contact SANE, the National Mental Health Charity Helpline on 1800 187 263 or Lifeline, a 24 hour crisis support and suicide prevention service on 13 11 14.

 

 

 

 

 

 

 

Australia: Criminalise ‘Image-Based Sexual Abuse’

Posted on by Noelle Martin

Australia needs to criminalise ‘image-based sexual abuse’. This includes:

  • revenge porn – the non-consensual sharing of intimate images;
  • morphed porn – the non-consensual doctoring of ordinary images into pornographic material; and
  • parasite porn – the non-consensual sharing of ordinary images onto pornographic websites.

Online sexual exploitation can happen to anyone but it primarily affects women. It is used as a tool by perpetrators to harm, intimidate, control, threaten, misrepresent or sexually objectify their victims. Technology-facilitated abuse can cause significant harm to victims including emotional distress, violation, shame, humiliation, damage to their reputation and employability and disruption to their employment or education. Victims can fear for their safety and have suicidal thoughts and/or attempt suicide.

A national inquiry on ‘revenge porn’ has already taken place, and in early 2016 the Senate Legal and Constitutional Affairs Committee recommended in a report that the Commonwealth Government and the states/territories make the ‘non-consensual sharing of intimate images’ a criminal offence. The Commonwealth and the majority of our states/territories are yet to enact such laws or any laws that specifically tackle sexual cybercrime in its various forms. (Seriously Australia, the US, UK, Wales, Canada and New Zealand are already on top of it)  

Despite the Committee’s recommendations, the Federal Government has shifted its focus to civil penalties, in part due to the distressing and slow nature of criminal proceedings. A move which raises significant concerns because pursuing civil actions are arguably the most costly, lengthy, inaccessible and emotionally taxing features of our entire legal system. The criminalisation of ‘image-based sexual abuse’ would not only provide justice for victims but would serve as a powerful deterrent.

Whilst there are challenges in enforcing laws in this area, such as matters of jurisdiction, the potential anonymity of perpetrators and the rapid dissemination of online material. The Commonwealth does have the tools to fight sexual cybercrime through empowering government agencies such as the recently expanded Office of the eSafety Commissioner, the AFP, and working with internet and social media providers. 

Federal Government – A new reporting tool won’t be enough, please criminalise ‘image-based sexual abuse’.

PLEASE SIGN OR SHARE THIS PETITION to send a message to the Australian Government, the Minister for Communications and the states/territories of Australia, that online sexual exploitation ought to be criminally sanctioned, that we want justice for victims, that we want the criminalisation of ‘image-based sexual assault’ #peoplepower