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!