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 convictions. 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.