ALP opposition to introduce bill banning revenge porn in the Federal Parliament

September 13, 2015 |

The Guardian reports in Labor to introduce bill outlawing revenge porn that the Federal Opposition will be introducing a bill to criminalise the posting and distribution, or the threat to post or distribute, private images of a sexual nature without prior consent.  This odious practice has been labelled revenge porn because the perpetrators are partners or former partners do the posting and distribution or provide it to those who do.

The scope of the bill as described highlights the chronic piecemeal nature to regulating in this area. Why criminalise the behaviour without providing some civil recourse to victims?  Why focus only on this activity without properly considering the core issue, that a person’s privacy has been invaded/interfered with?  There are interferences with peoples privacy which fall short of revenge porn but can cause distress or worse.   If a more comprehensive, rather than the latest scary practice, approach was taken to legislative reform then a statutory right to privacy should be part of any legislative reform.

Even with this mooted incomplete approach, just focusing on revenge porn, some scope should be given to the victim having a specific right to take action, including injunctive relief.  It is possible to take action using breach of confidence as was demonstrated in Wilson v Ferguson but it is an inelegant form of litigation, stretching the equitable cause of action to deal with something that should be dealt with by a stand alone tort.  The problem with confining options to a criminal offence is that it is a matter for the police to investigate a complaint and decide whether to charge and whether the prosecuting authorities believe there is enough evidence to sustain a charge.  It limits the options for the victim.  It would also be sensible to give the Privacy Commissioner a statutory right to bring a civil action on behalf of a person or a class of persons if they have limited resources or otherwise less able to exercise their rights. These issues have long been known and the proposed solutions hardly novel.  The constant has been a lack of will and foresight.

The article provides:

Labor will introduce a bill on Monday to make it a federal offence to distribute, or threaten to distribute, private sexual images or film clips without consent, a practice also known as revenge porn.

Under the proposed amendments to the criminal code, anyone who partakes in revenge porn will be liable for up to three years in jail. People who run websites or other electronic platforms such as social media pages dedicated to revenge porn could face an even harsher penalty of five years in jail.

People who threaten victims with publication of private sexual imagery without following through on the threat could also face jail time, as can people who threaten to release images of a third person in order to extort money or cause humiliation. This would include perpetrators threatening a husband with the release of his wife’s images or threatening a parent with the release of images relating to their child.

The proposed laws would apply to images or film clips posted on websites, or distributed via SMS, email and social media.

Labor’s bill allows exemptions for law enforcement officials and journalists who can prove that distributing the material is of public benefit.

People who make pornography specifically for distribution, or the creation and dissemination of anatomical imagery intended for medical training and use, are also exempted.
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The internet has become a hotbed for revenge porn websites, but Australian law has been slow to catch up with the technology.

No federal laws exist in Australia to stop the publication or distribution of private sexual images without the consent of one or more of the parties involved, though there are laws that make it a crime to use a carrier service with the intent to harass or menace.

In 2014, Victoria became the first and only state to criminalise revenge porn, so called because of the prevalence of websites which made it easy for jilted lovers to post pictures or videos publicly that were intended for private use.
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“This conduct may be designed to shame and humiliate the subject or punish them for discontinuing the relationship,” Labor’s discussion paper on the subject, authored by Victorian MP Tim Watts and Queensland MP Terri Butler, said.

“In other cases the unauthorised sharing of intimate material, or the threat to do so, is intended to harass the subject or coerce them to engage in conduct against their will. For example, someone may threaten to send private sexual images to their partner’s family to pressure that person to continue their relationship.”

The discussion paper notes that a victims contact information and home address are often listed on revenge porn websites along with their images, to further shame and humiliate them. Some victims of this type of abuse have committed suicide as a result of the harassment.

In May, the Australian government announced the formation of an advisory panel on domestic and sexual violence, headed up by Australian of the year, Rosie Batty, and former Victorian police chief, Ken Lay.

Part of the body’s focus is to examine how technology is being used as a weapon by perpetrators to further victimise and harass.

The Council of Australian Governments (Coag) is working towards a national strategy on dealing with online safety. It is expected to be finalised by the end of the year.

Last week, the minister assisting the prime minister for women, Michaelia Cash, indicated the government was looking at cracking down on revenge porn.
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“You’re in an intimate relationship, you take some photos, they’re not meant for anybody else. You leave the relationship and suddenly those photos are being used to blackmail you,” Cash told reporters on Monday. “We need to ensure that we have adequate legal protections in relation to what really is a new type of abuse and that is technological abuse.

“That is one of the key deliverables that Coag has been tasked with to deliver on by the end of the year and that is to look at do we have adequate legal protections in relation to technological abuse of women,” she said.

The international nature of the internet makes revenge porn particularly hard to prosecute, and many Australian women have found sexual images of themselves posted on international websites with little chance for recourse in domestic law.

In June, an American woman, Chrissy Chambers, commenced a landmark legal battle in England against her former boyfriend for posting a video online of the two of them having sex. England and Wales criminalised revenge porn in April this year.

Canada, Japan, the Philippines, Israel and some states of the US have similar laws.

Californian man Kevin Bollaert was sentenced to 18 years in jail in April for hosting a website that posted images of women without their consent, and then demanding hundreds of dollars from the victims to have the images removed.

But for most of the victims of revenge porn, predominantly women, who have had images and video of them distributed of them before laws were brought in in their countries of origin, gaining justice using existing laws is a challenge.

Victims find it difficult to prove they were defamed, as the imagery and clips depict an actual event and not a false assertion.

3 Responses to “ALP opposition to introduce bill banning revenge porn in the Federal Parliament”

  1. ALP opposition to introduce bill banning revenge porn in the Federal Parliament | Australian Law Blogs

    […] ALP opposition to introduce bill banning revenge porn in the Federal Parliament […]

  2. Victoria

    It’s not only privacy — at the very core is sexual violation.

    Nonconsensual pornography is a form of sexual abuse.

  3. Peter Clarke

    My interest is providing the necessary legal coverage and options for the victim. Banning revenge porn is the criminal option. There should be easier options for victims to take civil action. Sometimes the police do not charge or the DPP declines to prosecute. In those cases victims have to rely on an equitable cause of action which is not well suited to this sort of wrong.

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