Peter A Clarke

Revenge porn,  non consensual posting of intimate pictures or videos on line, is currently regulated by means of criminal offences in Victoria, South Australia, New South Wales and the ACT.  There is no specific civil cause of action or a statute based tort of interference with privacy.  There have been successful prosecutions of individuals, usually ex partners of the victim who posted intimate images in their possession to humiliate and harm the victim.   And that is for the good.  However, a criminal prosecution is a very blunt instrument and one that can lead to perverse outcomes if it is the only option.  As noted in Revenge porn: Are current laws punishing stupidity and naivety rather than criminality?   30% of those charged under the Victorian Revenge porn provisions were between 10 to 17 years of age.  That suggests that stupid and naive acts are getting caught up as well as the malicious and odious conduct that the legislation is designed to tackle. The consequences of a criminal conviction is significant for a young person who wants to lead a fairly conventional life.

In today’s World Today report National revenge porn legislation slated for this year will impose civil penalties for abusers the Federal Government will legislation civil penalties for the acts or threatened tacts of taking, sharing or threatening to share nude images without consent.  The Office of E Safety Commissioner will be responsible for taking action.  This development follows the Discussion Paper issued by the Australian Government’s Department of Communications and the Arts titled Civil Penalty Regime for non consensual sharing of intimate images in May 2017.  This is welcome as far as it goes.  Again the Government fails to acknowledge that there should be an overarching privacy protection available to all, not just those whose images have been posted without their consent.  There are many egregious interferences with privacy which do not involve the posting of nude images.   It is yet another opportunity missed.

What is curious is that the civil penalty regime will be covered by the E Safety Commissioner while the Australian Information Commissioner has responsibility for civil penalties for other forms of interferences with privacy involving the misuse of personal information, generally data, by organisations and agencies.  It would make more sense to have all actions taken by one party.  That said the Australian Information Commissioner has been a very timid regulator and sought miniscule awards.  Perhaps there is inadvertent wisdom in the not having one regulator for all privacy related breaches.

The World Today article provides:

The Federal Government plans to legislate civil penalties punishing the acts of taking, sharing or threatening to share nude images without consent.

Work has been underway for more than a year and drafting is underway to smooth over the current patchwork of state criminal laws.

The Office of the eSafety Commissioner will administer the civil penalties scheme expected to be before Parliament before the end of the sitting year.

“A civil penalties regime would give our office more powers to issue take down orders and the like,” said eSafety Commissioner Julie Inman Grant.

“And it could again help take out [for] the victim, to prosecute these expensive cases and get them the relief that they’re looking for.”

The most comprehensive research to date suggests one in five Australians have experienced image-based abuse in some form.

Civil penalties carry a range of remedies including injunctions and enforceable undertakings, and are aimed at speeding up the process for taking images down.

Low reporting rate for image-based abuse

Associate Professor Nicola Henry from RMIT, who has researched image-based abuse, said the present patchwork of state and territory laws was inadequate.

“The only jurisdictions that currently have specific offences in place include South Australia, Victoria, NSW and the ACT,” Dr Henry said.

“Those jurisdictions that don’t have specific criminal offences in place to tackle image-based abuse, they may rely on other offences that you’ve got, [like] stalking.

“Unfortunately the problem with stalking is it often requires like a course of behaviour. It has to be harassment over a period of time.”

Victoria’s revenge porn laws were introduced in 2015, but so far there have been only 209 arrests and summons.

Senior Sergeant Brett Meadows, a detective at Victoria Police, admitted the rate of reporting was on the low side.

“I would expect that there would be more of it happening out in society, but just people don’t come forward and that’s a problem that we’ve got,” he said.

“We need them to come forward so we can try and put a stop to it.”

Women told ‘it’s all in your head’

But Senior Sergeant Meadows denied it was a problem that still existed in Victoria Police.

“This is one [area] that we’re spending a lot more time on to make sure [police] do understand exactly what they need to do if someone comes forward,” he said.

“[That includes the importance] to treat them with respect and dignity, to give them the space to actually tell their story in private.”

There are many reasons why victims of image-based abuse may not come forward, chief among them the embarrassment they may feel.

Karen Bentley from WESNET, the peak body for women’s domestic violence services in Australia, said victim shaming was still a big problem.

“Women’s experience is either minimisation, so [they’re told], ‘It’s all in your head, it’s a bit of a joke, don’t worry about it, there’s no harm done’,” Ms Bentley said.

“We know that women are often told, ‘If you don’t want to be abused online, get off technology’.”