Wednesday, 15 August 2018
Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2018; Second Reading
I present the explanatory memorandum to this bill and move:
That this bill be now read a second time.
The Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill2018 implements the government's commitment to take strong action to combat the non-consensual sharing of intimate images.
The term 'non-consensual sharing of intimate images' refers to the sharing or distribution by a relevant electronic service, a designated internet service or a social media service of an image or video of a person or persons portrayed in a sexual or otherwise intimate manner, which has been shared without consent. This behaviour is colloquially referred to as 'revenge porn' or 'image based abuse'.
Intimate images might be obtained with or without the consent of the subject and can come from a variety of different sources including recordings from hidden devices, hacking into personal electronic storage such as computers, hard drives, cloud storage or email accounts, images shared with an individual with consent and subsequently distributed without consent, or images doctored to falsely portray an individual.
The sharing of images can occur over various electronic services including email, text or multimedia messaging, social media services, websites including mainstream pornography sites, message boards and forum websites, or websites specifically designed to host images shared without consent.
The reasons for non-consensual sharing of intimate images are varied. For example, it can often occur as a result of the former partner of a victim seeking revenge, or it can also involve acquaintances or complete strangers distributing the images either maliciously or simply because they foolishly think it might be a fun thing to do. However, in the most part the practice is generally intended to cause harm, distress, humiliation and embarrassment, whether through the actual sharing of intimate images or through the threat to share. Often such threats are made in an attempt to control, blackmail, coerce, bully or punish a victim. Other motives might include sexual gratification, entertainment, social notoriety and financial gain.
During the government's consultation about this bill we have heard that the psychological impact on victims can be significant and can have negative implications which affect their reputation, family, employment, social relationships and even personal safety.
The need for government action
This issue is a global concern with many countries taking targeted action against this unacceptable practice. The government recognises that the sharing of intimate images without consent is also an emerging issue of great concern here in Australia.
According to a report published in May 2017 by the Royal Melbourne Institute of Technology University, one in five Australians, one in two Australians with a disability and one in two Indigenous Australians have experienced the non-consensual sharing of intimate images.
Previously the impacts of intimate image distribution were limited by the restrictions of the physical world. However, as noted by academics from Bond University, 'As a result of movement from the physical to the digital world, globalisation and society's reliance on technology, many more of our lifestyle activities are conducted in the digital world.' The ubiquity of internet connected mobile devices has changed the way we socialise and increased the speed and reach of information shared online.
There are existing criminal offence provisions available in relation to the non-consensual sharing of intimate images at both the Commonwealth and state level.
Under Commonwealth law, it is an offence to use a carriage service in a menacing, harassing, or offensive way—section 474 of the Criminal Code Act 1995 (Cth) (Criminal Code). The maximum penalty for this offence is three years imprisonment or a fine of up to $37,800, or both. Since 2004 there have been 927 charges proven against 458 defendants under this offence, including a number of cases in relation to image-based abuse conduct.
Victoria, New South Wales, the Australian Capital Territory, South Australia, Western Australia and the Northern Territory have criminalised this behaviour and there have already been a number of prosecutions under existing state laws, including broad laws covering stalking, identity theft and domestic violence. Queensland and Tasmania have indicated their intentions to introduce specific criminal offences for this behaviour.
These laws do differ slightly across jurisdictions, which is why the Commonwealth worked with states and territories through the Council of Australian Governments, COAG, to support a nationally consistent approach to criminal offences relating to the non-consensual sharing of intimate images.
On 20 May 2017, the Law, Crime and Community Safety Council published the National Statement of Principles on the criminalisation of the non-consensual sharing of intimate images. Alignment on key principles is an important initiative as most offences are likely to be prosecuted at the state level.
The Commonwealth continues to work with states and territories on this issue.
Consultation on a proposed civil penalty regime
On 23 November 2016, the government committed to consult on a proposed civil penalty regime targeted at perpetrators who share intimate images without consent and the website and content hosts that are involved.
The government heard from a range of stakeholders, including women's safety organisations, mental health experts, schools and education departments, victims and members of the government's Online Safety Consultative Working Group.
The majority of stakeholders were broadly supportive of a civil penalty regime as it would provide victims a timely, accessible and effective means of redress not available to them through the criminal justice system. The ability to take down intimate images quickly is a primary concern of victims and support services.
Feedback from police indicates that victims are often reluctant to pursue criminal charges against perpetrators, which could result in lengthy and expensive court processes, which in turn has the effect of amplifying the harm inflicted on the victim.
Enhancing Online Safety (Non-Consensual Sharing of Intimate Images) Bill 2018
The Enhancing Online Safety (Non-Consensual Sharing of Intimate Images) Bill 2018 implements a civil penalty regime for the non-consensual sharing of intimate images.
The bill introduces a new prohibition for the non-consensual posting of, or threat to post, an intimate image on a social media service, relevant electronic service—which includes images shared by email, text or multimedia messages—or a designated internet service. A designated internet service could include websites and peer-to-peer file services.
During the consultation process stakeholders reached consensus that the eSafety Commissioner was best positioned to administer the civil penalty regime. This would utilise existing expertise within the Office of the eSafety Commissioner and build on the eSafety Commissioner's ability to take fast, effective action to have images removed and limit further distribution with minimal additional stress to victims.
Under the civil penalty regime, a victim or someone authorised to act on behalf of the victim can make a complaint to the eSafety Commissioner by phone, in writing or through the commissioner's online complaints portal.
The eSafety Commissioner will have the discretion to action various enforcement mechanisms, such as investigating complaints, issuing infringement notices, accepting enforceable undertakings or seeking injunctions.
The commissioner will also be able to issue formal warnings for breaching the prohibitions and will have the power to issue removal and objection notices to both perpetrators, social media services and content hosts. The bill will introduce a penalty of up to 500 penalty units—up to $105,000 for individuals and up to $525,000 for corporations—for a breach of the prohibition, or failure to comply with a removal notice.
In the Senate, the bill was amended by inclusion of provisions to amend the Criminal Code to create new criminal offences for the non-consensual sharing of intimate images and the bill before the chamber today includes specific criminal offences in relation to sharing intimate images without consent.
The government carefully examined the criminal penalties moved by the Centre Alliance in the Senate and identified technical issues with the operation of the amendments, as well as inconsistencies with definitions and provisions in the civil penalty regime currently in the bill. To overcome these difficulties, the government intends to move an amendment to the bill that displaces the amendments agreed by the Senate, and insert new criminal offences that will make a meaningful difference for Australians, and that send a clear message that criminal behaviour will not be tolerated.
National online reporting portal
On 16 October 2017, the government welcomed the pilot launch of a new national portal for reporting instances of non-consensual sharing of intimate images. The portal is a world-first government-led initiative developed by the Office of the eSafety Commissioner and it provides immediate and tangible support to victims of image based abuse.
The portal gives victims a place to seek assistance and report instances of image based abuse. It provides clear and concise information about the practical steps victims can take to reduce the impact of the abuse.
The pilot is designed as a test platform to evaluate the volume and complexity of reports about image-based abuse. The Office of the eSafety Commissioner expects to formally launch the portal later in the year. This civil penalty regime will complement the portal.
Industry efforts in addressing the non-consensual sharing of intimate images
I would like to commend those social media providers and content hosts that have taken steps to address this issue through the development of acceptable use guidelines, the adoption of complaints processes and the investment in technology which removes or prevents further posting of images. Victims have benefited from industry investment and responsiveness.
The government expects that these social media providers and content hosts will build on this good work. Let me highlight that the bill does not prevent victims from approaching these services in the first instance to quickly remove images as opposed to first approaching the Office of the eSafety Commissioner, should that be the wish of a particular victim.
The government also recognises the strong partnerships that many social media services, content hosts, and technology companies have established with the Office of the eSafety Commissioner and envisages that these relationships will continue to be pivotal in protecting Australians against the non-consensual sharing of intimate images.
The bill reflects the government's ongoing commitment to keep Australians safe online.
The non-consensual sharing of intimate images is a significant issue that can have an adverse impact on victims, their families and the Australian community.
The bill will prohibit the non-consensual posting of intimate images and the threat to post intimate images. It will empower the eSafety Commissioner with enforcement capabilities, including the ability to take fast and effective action to have images removed and limit further sharing of images.
The civil penalty regime will complement existing criminal laws and provide another avenue for victims to seek assistance and redress. It will also send a clear message that, in Australia, the non-consensual sharing of intimate images is unacceptable in our society.
On behalf of the government, I express thanks to those stakeholders who provided input, either through submissions or attendance at the public workshops, during the consultation process. I make special mention of those victims who shared painful details about their own personal experiences. Their stories and views were essential in the development of this bill.
I commend this bill to the House.
I rise to speak on the Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2018. It has been a long time coming, but it is a good thing that we are here. It is essential that the parliament sends a clear and specific message to the community that the sharing of intimate images without consent is not acceptable. Labor is deeply committed to keeping Australians safe online and therefore supports this bill which introduces a civil penalty regime to combat the non-consensual sharing of intimate images.
The substance of this bill was not the government's starting point. That is the fact of the matter. But Labor welcomes the government's change of heart and backflip in relation to the criminalisation of image based abuse online. It is unfortunate that this government has wasted a lot of time insisting Australia doesn't need a specific criminal offence for image based abuse. So we're pleased they finally accepted the evidence, changed their tune and followed Labor's lead. The experts agree that the sharing of intimate images without consent is a serious form of abuse which can cause significant and ongoing harm. It should be a specific criminal offence. Labor will support the government's amendments, given they adopt Labor's clear and longstanding position on this issue.
Turning to the substance, as I said, Labor will support this government's amendment to introduce aggravated offences for the offensive use of a carriage service where the conduct involves private sexual material, because it does reflect this longstanding position of the opposition. The amendment expands upon the civil prohibition and civil penalty regime in the bill, applying increased criminal penalties to the most serious instances of sharing of intimate images.
In October 2015, Labor first introduced a bill to criminalise the sharing of private sexual material without consent. Shortly after, the Senate Legal and Constitutional Affairs References Committee established an inquiry into this issue, during which the Commonwealth Director of Public Prosecutions expressed concerns that there are limitations on existing Commonwealth laws to adequately deal with conduct then commonly referred to as revenge porn. The Australian Federal Police noted, 'Uniformity in legislation across Australia would be most helpful for police to be able to investigate and charge perpetrators.'
Following that, and over two years ago now, Labor took a policy to criminalise image based abuse to the 2016 federal election. We promised to do that within the first 100 days of being elected because we understood the urgency of this matter, an urgency which is shared by the Australian people. In October 2016, Labor reintroduced its private member's bill in the current parliament. However, it was removed from the Notice Paper on 23 May 2017 because the government refused to call it on for debate for eight consecutive sitting Mondays. For years Labor and others have said there should be a specific criminal offence, yet time and again this government maintained that existing criminal law is enough and there is no need for a specific criminal offence.
RMIT research indicates that four in five Australians agree it should be a crime to share sexual or nude images without permission and:
… there is a broad agreement within the Australian community as to the seriousness of this issue, regardless of whether someone has experienced it personally.
The experts agree that the sharing of intimate images without consent is a serious form of abuse which can cause significant and ongoing harm. For example, in April 2016, the COAG Advisory Panel on Reducing Violence against Women and their Children released a report recommending:
To clarify the serious and criminal nature of the distribution of intimate material without consent, legislation should be developed that includes strong penalties for adults who do so.
All this time the government has justified its failure to introduce a specific Commonwealth offence for image based abuse on the basis that there is an existing offence under section 474.17 of the Criminal Code for misuse of telecommunication services to menace, harass or cause offence. Now, finally, with this amendment, the government has changed its tune. As I said, Labor will support the government's amendments to introduce criminal penalties given the amendments adopt Labor's clear and longstanding position on this very issue.
Here I would like to pay tribute to the efforts of a range of stakeholders in the community who have worked hard over many years to make progress on this issue, as well as a number of my Labor colleagues who have prosecuted and championed this outcome for many years—in particular the member for Griffith, the member for Gellibrand, the member for Hotham and the member for Isaacs, the shadow Attorney-General.
If you turned on the radio or TV this morning you could be forgiven for thinking that the Turnbull government, and indeed the Minister for Communications, had suddenly woken up and decided, of their own accord, that there should be a specific offence for the sharing of private sexual material without consent. On Nine's Today show, the minister said, 'We do have some existing criminal penalties for what is known as revenge porn or the sharing of intimate images without consent. We don't think that's strong enough. We want to have a specific aggravated offence that sends a clear message to creeps that it's not on.' And, 'We want to create a specific aggravated offence. At the moment there are general criminal penalties.' The reality is this: the Minister for Communications wasted a great deal of time refusing to acknowledge the weight of evidence and refusing to acknowledge that a specific offence is warranted. The truth is that this minister had to be dragged to this point and was finally forced to respond when earlier this year the Senate amended the bill to criminalise image based abuse, in line with Labor's private member's bill of 2015. So, it was more than a bit rich when the minister, in responding to Fran Kelly on ABC Radio National this morning, said he had not changed his mind on the matter:
Fran Kelly: Minister, am I right in saying that you didn't support criminal sanctions in the past? Have you changed your mind on this?
Senator Fifield: No. We do already have some criminal provisions in the law. What we put before the parliament was a civil penalties regime, because we don't have civil penalties in relation to this sort of activity at the moment.
It is fortunate that, in getting us to this point, the Attorney-General and the shadow Attorney-General were able to work through the issues involved in this matter relatively quickly to resolve the criminal amendments now before us. I commend the constructive approach of the Attorney-General over the past few months, which stands in stark contrast to his predecessor. I again acknowledge the heavy lifting, in terms of policy development on the Labor side, done by them, and by the colleagues I have mentioned.
It is poor but predictable form that the Minister for Communications did nothing to acknowledge this in the same way, or the constructive progress that came out of the office of the Attorney-General, his own department, and the bipartisanship that was shown by the Attorney-General and his counterpart, the member for Isaacs. This needs to be put on the record.
All that aside, Labor welcomes progress on this issue. As I said, it is essential that the Australian parliament sends a clear message to the community that the sharing of intimate images without consent is not acceptable. As the Australian Information Commissioner stated in a submission to the department's consultation on the bill last year:
The non-consensual sharing of these images is a serious invasion of privacy, which has the potential to cause severe harm, distress and humiliation to the victim. Further, the harm that can be caused through the sharing of such images is exacerbated by rapidly increasing technological capacity for capturing images and making recordings, and the ability to distribute digital material on a vast scale.
Labor supports the bill because it promotes the right to protection from exploitation, violence and abuse by prohibiting the non-consensual sharing of intimate images. The purposes of the bill are to deter people from engaging in this behaviour and to provide the eSafety Commissioner with a range of enforcement mechanisms to address contraventions of the prohibition.
According to a research report published by RMIT in May 2017, one in five Australians, one in two Australians with a disability, and one in two Indigenous Australians have experienced the non-consensual sharing of intimate images. This is an utter disgrace. The psychological impact on victims can be significant, and negative implications can affect their reputation, their family, their employment, their social relationships and their personal safety. While the non-consensual sharing of intimate images can often occur as a result of the ex-partner of a victim distributing images of the victim for the purposes of seeking revenge, it also can involve acquaintances or complete strangers distributing the images. The practice is generally intended to cause harm, distress, humiliation and embarrassment, whether through the actual sharing and distribution of those images or through the threat of sharing, often in an attempt to control, blackmail, coerce or punish a victim, commonly referred to as sextorsion. Other motives might include sexual gratification, supposed fun, social notoriety and/or financial gain.
The explanatory memorandum to the bill acknowledges the harmful consequences as well. It states:
The non-consensual posting of an intimate image is a serious breach of a person’s right to privacy. It involves the sharing of a personal and intimate image with a person or people with whom it was not intended to be shared. Not only is this a fundamental breach of trust by the person sharing the image, it often has long lasting detrimental consequences for the person depicted in the image.
… … …
The posting of an intimate image without consent is also an attack on a person’s reputation. Not only does it cause harm and distress for the victim, it can also have broader impacts for the victim’s reputation.
The Australian public recognise the abhorrence of this practice and the significant harm it causes victims, and expect an appropriate regime to be enacted to prevent and minimise harm to victims or potential victims.
Labor believes, and we have long believed, that the significance of this harm warrants criminal penalties, plain and simple. And we are pleased that the government has come around to this view.
I wish to turn to options for redress. Labor supports victims having a range of options available to them to deal with the harmful issue of image based abuse. While not all victims of image based abuse will want to enact criminal proceedings, some may prefer to go to the eSafety Commissioner under the civil regime and others may wish to go to the platforms directly. Labor acknowledges and appreciates that the more prominent social media providers and content hosts are working very hard to develop innovative technological measures or already have robust processes in place intended to assist victims whose images have been shared without consent. Labor encourages these social media providers and content hosts to continue this good work. We note that the bill will not prevent victims from approaching these services in the first instance, rather than the Office of the eSafety Commissioner, if they so choose.
Labor recognises the strong partnerships that social media services and content hosts have established with the commissioner and encourages them to continue, as this will be pivotal in protecting Australians against the non-consensual sharing of intimate images. Labor also understands how important it is to have a strong legal framework in place to strengthen the commissioner's ability to resolve matters informally and in a graduated manner according to seriousness. Labor acknowledges that the Office of the eSafety Commissioner will seek to use established relationships with social media service providers and content hosts to facilitate the taking down of images and, thus, a removal notice or other enforcement action may not be required in every case. At the other end of the scale, Labor also understands how important it is to have a strong legal framework that recognises the criminal seriousness of this form of abuse.
Against this backdrop, Labor notes some of the key concerns of the DIGI Group, as stated in its submissions to the department's consultation on the discussion paper on the non-consensual sharing of intimate images. These concerns include that the bill duplicates existing industry efforts to remove image based abuse and may not represent the most targeted or effective use of taxpayer resources and may even disincentivise industry innovation in addressing image based abuse. The bill does not require victims to first exhaust companies' complaint channels, for example. Also, the bill may not improve compliance around the removal of image based abuse, given that major digital platforms already operate efficient take-down policies, some of which see the removal of offending content faster than the 48-hour time frame stipulated in the bill, and given that the eSafety Commissioner is likely to continue to encounter difficulty in compelling overseas sites and rogue operators.
In view of these concerns, Labor moved an amendment that was carried in the Senate to ensure that within three years of the commencement of the bill the minister should cause to be conducted a review of the civil penalty regime for the non-consensual sharing of intimate images, along with the preparation of a report and tabling of a report in each house of the parliament. There is a similar provision in section 107 of the Enhancing Online Safety Act 2015 in relation to the cyberbullying regime. Labor thanks the Senate for their support of this amendment.
In conclusion, as I said, Labor will support this bill and the government amendment to this bill. I reiterate the comments of the Leader of the Opposition in his November 2016 White Ribbon Day speech nearly two years ago:
So called revenge porn should be a crime across Australia but it is not. Criminalisation of so called revenge porn should be a Federal law, not just left to a patchwork of state laws, consistent with the Commonwealth DPPs recommendation.
Labor is pleased that we have finally reached the point of making those words a reality.
In rising to speak in support of the Enhancing Online Safety (Non-Consensual Sharing of Intimate Images) Bill 2018 and the government's amendments today, I'd like to begin by congratulating the government on listening to Australians and letting them be the guiding force behind this change. Through extensive consultation during 2017, those impacted told us that their most important concern was ensuring that images that have been posted on the internet or on social media are rapidly removed. I'm proud to be part of a government that has listened to that feedback and is delivering effective and timely removal of non-consensually-shared images. It's critically important that we pass this bill and protect men and women from what is becoming an increasingly common type of online abuse.
The responsibility for the non-consensual distribution of intimate, nude and sexual images lies entirely with the individuals who choose to distribute them, and they should face serious consequences for their actions. However, as we, rightly, condemn those abusers who share the images and legislate to protect innocent people from them, we should not be afraid to also reiterate the importance of being aware of one's own security online and taking steps to help to protect oneself from falling victim to this form of abuse. Unfortunately, a great many of the images involved in this kind of abuse were created consensually or taken by the complainant themselves. Though this does not in any way excuse those that share them without consent, it is a simple fact that voluntarily allowing intimate images to be created and to be possessed by others substantially increases the risk that an individual will leave themselves vulnerable to the vagaries of human relationships. Just as we inform the public about precautions we can take to protect ourselves from any other type of crime or abuse, I believe we should also seek to educate both men and women in Australia about the risks of these breaches of trust, and to encourage them not to allow images of themselves of this kind to be created in the first place. I would urge everyone in Fisher and throughout the country to be aware of their own personal safety in this regard and not to consent to these images being taken in the first instance. Put simply, I would suggest that people just don't take photos of themselves in compromising positions or allow others to do so. It's not worth the risk. And do you know what? It's not rocket science. But, if there is anyone out there for whom this is a form of self-expression and for whom it is important enough to take the risk, I would urge them to make sure that they retain control of the images produced and do not allow any other person to possess them.
If anyone watching believes that they have been subject to image based abuse, I'd encourage them to immediately contact the Office of the eSafety Commissioner, which is already able to provide a great deal of support and, in many cases, has been able to successfully have images removed. Since early 2018, the eSafety Commissioner's office has received 217 reports of image based abuse involving 349 separate sharing locations. The commissioner has been successful in having image based abuse material removed in most cases but, unfortunately, those reported represent only the tip of the iceberg.
Research by the Royal Melbourne Institute of Technology University has found that one in five Australians aged between 16 and 49 have experienced the non-consensual sharing of intimate images. Unfortunately, as many as one in two people with a disability are affected. Younger Australians in particular are also highly represented in this group, with one in three teenagers aged 16 to 19 and one in four people in their 20s being adversely affected. These statistics only include those who have discovered that their images have been taken and distributed, and chances are there are many more where they haven't been discovered. A study by the Social Science Research Network in the US found more than 3,000 websites which host intimate images shared without consent, with many giving the full names and even contact details of those photographed.
Mr Deputy Speaker Andrews, you and many others in this place, if not all, know the consequences and how devastating they can be. Those impacted by image based abuse of any kind are twice as likely as others to report experiencing high levels of psychological distress. The eSafety Commissioner tells us that many of those impacted experience long-term anxiety, fear and depression. As many as 49 per cent of complainants in one US study reported receiving unsolicited cyberstalking or harassment from strangers who had seen their images. Reports from all over the world attest to the fact that, in some cases, this abuse can, sadly—very sadly—lead to suicide.
Parents, please remind your children, even if they're over 18, that if they take part in what is referred to as sexting they lose all control over those images, and chances are they will never get them back. They could end up, for example, being posted on the dark web by paedophile groups, who share such images worldwide for profit.
The coalition government has already taken action to deal with this increasing threat. It was the coalition that established the Children's eSafety Commissioner in July 2015 and the Turnbull government that expanded its role to encompass e-safety information and support for all Australians. In total, the government committed $10 million to support those affected in 2016-17, including $4.8 million to allow the eSafety Commissioner to develop and implement an online complaints portal for image based abuse which delivers fast access to very tangible help. In the latest federal budget, the government allocated an additional $14.2 million to facilitate the ongoing delivery of new and existing initiatives. These include new resources for frontline workers and school chaplains, targeted materials to support vulnerable Australians and online safety training to pre-service teachers at university. This action to date has been important and welcome, but I believe that as parliamentarians we should all play a part in raising awareness of these issues.
Like many electorates around the country, my electorate of Fisher includes nearly 10,000 young people aged between 18 and 24, who are particularly at risk, as well as thousands more students at 13 secondary schools, who are, regrettably, increasingly facing cyberabuse of all kinds. I myself have four daughters, all of whom are now young women. The distress that an incident of this kind would cause them, and the possible consequences for their careers, their relationships and perhaps even their mental health, are hard to fathom. I've therefore taken a particular interest in the issue of cyberabuse.
In February this year, I invited the eSafety Commissioner, Ms Julie Inman Grant, to the electorate of Fisher to promote the work of the office and to help educate the community about how they can be safer online. Julie spoke at my event at Kawana Waters State College about cyberabuse of all kinds and provided advice on how students can report it. I'm following up this work with a practical e-safety awareness poster which I'm distributing to schools and other prominent community locations for display.
I've worked with the relevant ministers to explore what more we can do to criminalise the worst forms of cyberbullying and have met with the Prime Minister's generous support with the world's leading social media companies to seek change at a corporate level. As such, I'm grateful to the government for bringing forward this latest piece of legislation which will complement existing criminal offences at a state and Commonwealth level and ensure that we get this content offline as quickly as possible.