Civil penalties for non-consensual sharing of intimate images -“revenge porn”

In a recent submission to the Department of Communication & the Arts, NSWCCL made specific recommendations to a proposed Commonwealth government prohibition on non-consensual sharing of intimate images, colloquially referred to as “revenge porn”.  We also addressed the question of appropriate civil penalties to deter, prevent and mitigate harm to victims, by individuals and content hosts, who breach the prohibition.

NSWCCL considers the non-consensual sharing of intimate images to be a privacy issue. It occurs when experiences, deemed private, are distributed without consent to the public, the victim’s family, work mates, employer or friends.  Nonetheless, privacy requires a balance of interests, therefore defences of public interest and consent should be available to the perpetrator.

The prohibition proposed by the government would be modelled on the Enhancing Online Safety for Children Act 2015 (Cth) (EOSC Act).  NSWCCL agrees that many of the provisions in the EOSC Act are suitable to deal with the non-consensual sharing of intimate images.  The EOSC Act establishes the role for a Commissioner to oversee a cooperative social media service scheme. The Commissioner is also authorised to approach the Federal Court for civil penalties, enforceable undertakings and injunctions.  A great benefit to complainants is that once a complaint proceeds, the Commissioner’s office takes over the process for removal of the material. NSWCCL agrees that the Commissioner should have a similar role to deal with non-consensually shared intimate images. 

Recommendations

NSWCCL made a number of specific recommendations dealing with the proposed prohibition and penalties, summarised below.

The Prohibition

• The proposed prohibited behaviour should include a “threat” to share an intimate image (whether the images exist or not), not just “actual” sharing. It is the threat of distribution of intimate images that is often used to harass and control victims.
• It is appropriate that the proposed prohibition does not distinguish between an image originally taken with consent or not (e.g. a “selfie” as opposed to an image taken without a person’s knowledge); or, an image taken in private or public.
• It should be a matter for the perpetrator to establish that the subject of the intimate image consented to its sharing.
• Vulnerable persons (including minors or persons that are unconscious, asleep, or have been subject to physical or mental threats) cannot consent to sexual assault. Minors, in any event, have a greater propensity to misuse digital technology to invade another’s privacy and may lack the capacity to appreciate their actions. In these cases, consideration should be given to the circumstances of the parties’ relationship, their maturity and whether one is in a position of power over the other. Therefore, there should be lesser penalties for minors who offend, those who act without malice and those who take steps to mitigate harm on realising the consequences of their actions.
• The definition of “sharing” should also include low and no tech forms of sharing, such as, mail, physical delivery, making available, social networking, email, publishing, or word of mouth advertising. There is a capacity to cause serious harm, for example, by posting flyers around the victim’s school or community.
• The definition of “intimate images”, should be expanded to include:
  • the appearance or apparent engagement in a sexual pose or sexual activity.
  • images depicting a person in semi undress in circumstances where a person would reasonably expect to be afforded privacy (e.g. when the victim is completely clothed but performing sexual acts on someone).
  • a reference to breasts of a post-pubescent female, transgender or intersex person who identifies as female, whether covered by underwear or bare.

Civil penalties

• A range of supports should be available to assist victims, many with limited finances, to have their intimate images removed and to facilitate resolution of disputes. Civil penalties should include:
  • enforceable undertakings in which a person, or organisation, agrees to rectify, or prevent, a contravention of a law. The undertakings are legally binding and particularly relevant where there is a threat of sharing.
  • take down notices, issued by the relevant agency, which offer speedy removal of images from the internet. This should be the immediate response of the internet  provider or website host.
  • injunctions to restrain an anticipated or continuing breach which might be sought by the Commissioner when a take down notice is ignored.
  • a cooperative scheme modelled on the EOSC Act, which encourages large scale social media sites and internet providers to implement an effective complaints and take down system. An expansion of the cooperative arrangement should ensure that the onus is on the wider community of internet providers to take steps to verify that the intimate image is being distributed with the subject’s consent.
  • site blocking, already available as a remedy in copyright legislation, achieved by an order on an internet provider, blocking access to a foreign website.
  • the obligation by internet providers and website hosts to disclose the identity of a perpetrator who non-consensually shares intimate images.
  • suspension or deletion of user accounts that upload non-consensual images and restrictions on computer and internet use by a perpetrator.
• The motive of many perpetrators is not to cause harm or distress but to cause humiliation, entertain, make money or achieve notoriety.  Therefore, in considering the seriousness of a breach of the prohibition, consideration needs to be given to the likelihood of harm and the degree to which the sharing of images violates the community’s standards of acceptable conduct.
• The proposed Commissioner should have the power to report unlawful activity to law enforcement agencies, for example, when a serious sexual assault has occurred. This response needs to be balanced with the risk that minors won’t report intimate images if their parents or guardians are to be informed or information is supplied to police who may punish the perpetrators excessively.

Global sentiment is moving towards making internet providers more accountable for the content displayed on their platforms. The challenge for the government is to demand accountability and introduce a regime that brings immediate effective relief to victims whilst anticipating future technologies which may be used for sharing.

Read the full submission here: NSWCCL_submission_sharing_of_intimate_images_30.6.17.pdf