Tag: image-based sexual assault

Sexual predators edited my photos into porn – how I fought back

Posted on by Noelle Martin

TW: Image-based sexual abuse/sextortion

 

I am LITERALLY SHAKING with emotion as I share my TEDxPerth talk about my experiences of image-based abuse.

It’s also bittersweet because to this very day I am still experiencing this horrific crime. Not that long ago an anonymous sexual predator doctored me onto the body of a woman wearing a semi-transparent, nipple-exposing t-shirt with the words ‘I AM A DUMB COW’ written on it, which was shared online. The same sexual predator also doctored another image of me on the cover of another adult movie next to the words ‘TREAT ME LIKE A WHORE’. These were the LEAST sexually explicit of the most recent wave of doctored images of me.

There was a time when I would see these doctored images of me on pornographic sites and uncontrollably cry myself to sleep. But now I am so determined to do what I can to combat image-based abuse so that no other person has to be the subject of this dehumanising and potentially life-ruining criminal behaviour, because this issue is SO much bigger than me or any one person.

It is a global issue. It can and does happen to anyone – particularly women, people with disabilities, the LGBTQI community and other vulnerable groups.

While Australia and many countries around the world have criminalised or are in the process of criminalising image-based abuse (revenge porn), there is only so much one country or state can do to combat an issue that transcends jurisdictions.

The international community (including social media and tech companies) MUST work together to help combat this issue because right now too many victims are left without justice. Technology is advancing faster than our laws, and predators are continuing to come up with new ways to abuse others. We need a global plan of action. And we need it now.

There is so much more I would’ve liked to say in this talk, especially to those who are experiencing image-based abuse. If that is you – I really want you to know that you are not alone. You are loved. You are supported. And the fight for justice is as strong as ever. Yes, things might get really tough. People might victim blame and slut shame you. There might not be any justice or recourse. People might invalidate your experiences because they don’t understand that what happens online has real world consequences.

But PLEASE don’t lose hope or give up. Please know you are not to blame –
It’s YOUR BODY, YOUR CHOICE – ALWAYS. Please stay strong. I know it is easier said than done, but take each day as it comes. Surround yourself with those who love and support you, because things CAN get better. I know it.    (Below I have included the details of the world-first image-based abuse portal created by the Office of the eSafety Commissioner under the amazing leadership of Julie Inman Grant – from personal experience I can tell you that this service is so incredible for those who are looking for support if you are dealing with this, the staff are professional, kind and so caring.)

I also want to take the time to reiterate something I said in the talk – I do NOT in any way want to take credit for ‘changing the law’ AT ALL – In this journey I have had the privilege of meeting fellow survivors and activists who have fought with all their hearts and might for change – this is on their backs. It’s on the backs of ALL the victims and survivors who have dared to speak out.

One warrior in particular is Brieanna Rose who inspires me to my very core. She has been instrumental in this change and she deserves to be recognised. She is an incredible warrior. And it is an honour to know her. I love you Brieanna. I am so grateful for all the work you have done and continue to do for justice.

I have also met some of the incredible academics who have been pivotal in enacting change – Dr. Nicola Henry, Dr. Anastasia Powell and Dr Asher Flynn who have contributed so much in this area – their work and passion is invaluable, and we owe them a great deal of thanks. This is on their backs. They are incredible.

This is also on the backs of women’s rights advocates, tech safety experts, policy advisers, lawyers, politicians and especially the amazing people who helped create such a life changing piece of legislation at the NSW Attorney General’s Department including the NSW Attorney General Mark Speakman who actually included me in this process. Thank you for giving me a voice, thank you for giving me a chance to reclaim my name. I can’t tell how much it has meant to me.

This is also on the backs of so many other stakeholders in Australia and around the world who have worked for years fighting for change and justice in this area. The process of changing the law is not easy, it is a long and convoluted process and I am so grateful to every single person who has played a part in fighting against image-based abuse in Australia and beyond. I am so proud of all your work.

I also want to make it clear, that I could not have gone through this journey without the support of my immediate family (Dad, mum and my 4 sisters – I love you and thank you for putting up with my non-stop crying during the worst of times), my best friends, Liam Downey, Mads Duffield and Tanaya Kar who have supported me from day 1 – I love you and I am forever indebted to you, you were there for me at my worst and I can never repay you. Thank you to ALL my other close friends who have lifted my spirits and given me strength in my darkest days – you know who you are, I love you dearly!

To everyone who has followed this journey and taken the time to reach out – I’ve said this before and I’ll say it again – it does not go unnoticed and I appreciate it more than you know. I want to thank two particular law professors at my uni – Zara J Bending and Shireen Daft who have listened, encouraged, empowered and shown so much love, care and support to me – you have been such pillars of strength for me. Karin Bentley who not only has done so much work fighting for tech safety for women, but has supported and gone out of her way to allow me to share my experiences, bring me to the table, and give me a voice, something that people don’t do often, I am so incredibly grateful to you.

I also want to give A HUGE THANKS to TEDxPerth for allowing me to share my experiences in the first place. Thank you for seeing value in what I had to say and having faith in me. Thank you to all the organisers and curators for VOLUNTARILY doing SO MUCH work putting the event together. TEDxPerth 2017 was a success and it’s thanks to you. To Andrea Gibbs and Emma who were nothing short of phenomenal. They helped me so much with this speech. And were brutally honest with me when it sucked BAD. I am so grateful for your help and support – I really can’t express in words how much your help and support meant to me.  

If you are currently experiencing a form of image-based abuse, please contact police or there is support available through the WORLD-FIRST image-based abuse portal here: https://www.esafety.gov.au/image-based-abuse/

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. 

 

 

 

 

 

 

 

 

 

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

 

Pornographic Cybercrimes: Does the Law Protect Your Personal Privacy?

Posted on by Noelle Martin

It seems like every other day we are hearing stories in the news of young girls taking their lives because their nude photos were plastered online without consent. We hear about celebrity nude photo hacks. We hear about government ministers in the Northern Territory embroiled in revenge porn scandals. More recently, the target has hit closer to home, with school students from over 70 Australian schools caught in a pornography ring, featuring thousands of non-consensual sexually explicit images of young girls.

The news is dominated by instances of ‘revenge porn,’ that is, the distribution of sexually explicit or intimate images of another person without consent, usually by ex-lovers. But we rarely hear about ‘parasite porn’ which is when ordinary images are taken from a person’s social media site and posted on threads in a pornographic site, usually alongside offensive and objectifying comments. In other words, you might not have taken a single sexually explicit photo of yourself- but you’re still not immune from being the target of sexual cybercrime.

We also rarely hear about ‘morphed porn’ where ordinary images are manipulated and superimposed on naked bodies and posted on porn sites. The bottom line is that in today’s age of technology, while revenge porn may be on the rise, it is not the only issue compromising our personal privacy.

There has been some talk that law-makers should re-name and categorise revenge porn, parasite porn and morphed porn into what is known as image-based sexual assault. I’d argue that the categorisation of ‘image-based sexual assault’ is preferable as it would encompass a broader range of sexual cybercrimes.

It is very important to know, that while young women are the primary targets of such invasions of privacy, anyone can fall victim to sexual cybercrime – yes, even males. I know of one case, where a guy had dressed up as an animal for a costume party,  later to find it on one of those furry fetish porn sites.

So what laws, if any, are in place to protect our personal privacy in this digital age?

Well, the law has not caught up with advancements in technology and unfortunately Australia is yet to criminalise revenge porn. There are only two state jurisdictions, South Australia and Victoria that have implemented revenge porn legislation. For example, in Victoria it is an offence, punishable by up to two years imprisonment, to maliciously distribute, or threaten to distribute, intimate images without consent. However, these criminal provisions have been criticised for being too ‘weak’ a punishment for perpetrators and too ‘broad’ in scope to capture the harm caused by revenge porn.

Since the majority of Australian states have not criminalised revenge porn, victims have to predominantly rely on civil actions to seek redress for invasions of personal privacy, possibly copyright or defamation proceedings. However, contrary to popular opinion, a general tort protecting personal privacy does not exist in Australia. As such, courts have tried to fit cases involving circumstances of ‘revenge porn’ into existing causes of action. As a result, what we have ended up with is a quasi-privacy tort, namely an equitable action for breach of confidence that was set out in the notable personal privacy case of Giller v Procopets.

The recent case of Wilson v Ferguson applied the principles set out in Giller v Procopets and relied on an action for breach of confidence in circumstances of ‘revenge porn.’ In this case, Ferguson and Wilson were involved in sexual relations and shared sexually explicit photos and videos of each other during their relationship. When the relationship ended Ferguson posted the intimate photos of Wilson to Facebook for public viewing without consent. Wilson was left severely emotionally distressed.

But is this quasi-privacy tort effective in dealing with the rise of revenge porn?

Firstly, this quasi-privacy protection fails to effectively punish perpetrators, and deter future incidence of sexual cybercrimes. Given that the harms felt by victims of sexual cybercrime are significant: as victims are more vulnerable to suicide; others experience stalking, depression, emotional distress and humiliation; for some it has affected their employability and others have lost their jobs. Is it really enough to simply award an injunction and provide monetary compensation to victims under this quasi-privacy protection?

Such harms warrant the criminalisation of revenge porn and the imprisonment of perpetrators. Criminalising revenge porn would serve to provide stronger punishments to perpetrators and would deter future incidence of sexual cybercrimes.

Additionally, this quasi-privacy protection in Australia fails to provide adequate justice for victims. It is somewhat paradoxical that civil actions intended to protect our personal privacy, doesn’t necessarily achieve this outcome- because an action for breach of confidence means that victims may not remain anonymous, unlike the protection that criminal prosecution affords. In fact, victims may be reluctant to seek civil redress because it is extremely timely, costly and emotionally taxing for already vulnerable victims and may increase publicity of the photos.

But even if Australia’s laws were to change – there are inherent problems for lawmakers in addressing these issues due to the nature of the digital landscape:

  1. There are difficulties in enforcement and punishing perpetrators, especially where sites are run outside of Australia.
  2. Once an image is online it can be very hard to remove because images can be shared instantaneously all over the internet and before the law can step in much of the damage is already felt by the victim.
  3. There are difficulties in detecting intimate photos as quite often victims are not aware that their intimate photos have been posted online and by the time the victims become aware that their intimate photos have been posted, the images have gone viral making its removal near impossible.

In America, the situation is quite different. Already around 34 states have revenge porn legislation. Most revenge porn legislation in America is based on the New Jersey or the Californian models, both differ significantly. For example, in New Jersey, it is a crime, punishable by up to 5 years’ imprisonment, to disclose any photograph, film, videotape… of another person whose intimate parts are exposed or who is engaged in a sexual act without consent. Unlike New Jersey, California’s revenge porn law requires there be an intent to cause serious emotional distress and that the depicted person suffers serious emotional distress.

For Australia, all hope is not lost. In late 2015, Tim Watts MP introduced a Private Members’ Bill in the House of Representatives that would criminalise revenge porn, although it wasn’t passed into law. In March 2016, the NSW Legislative Council Standing Committee on Law and Justice released a report on serious invasions of privacy and on September 5 2016, NSW Attorney-General Gabrielle Upton announced that the NSW Government will seek to criminalise revenge porn.

However, deciding to criminalise revenge porn is just one step in dealing with this issue. For NSW and the rest of Australia, questions arise as to what this new law would prescribe: Would the penalties be stronger than two years’ imprisonment as set out Victoria and South Australia or closer to 5 years like the American models? How will it try to reconcile the inherent problems of enforcement and the removal and detection of photos? Will this new law also capture instances of ‘parasite porn’ or ‘morphed porn?

So, how do you find out if you’re the victim of sexual cybercrime? A simple Google Image Reverse Search is a start to see if any of your photos are anywhere on the internet. If, however, you find that there are images of yourself on pornographic sites without your consent- Google now allows you to request the removal of photos or videos on Google search results. We’ve waited a long time for revenge porn legislation but at least now the future is looking promising for Australia.

 

 

 

Written by Noelle Martin. A version of this article has previously been published in The Brief- The Macquarie University Law Society Publication.