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Image-Based Abuse; What the Australian Government Has and Hasn’t Done to Combat ‘Revenge Porn’

By: Rachel Harris


Since the increase in the amount of online interaction due to the COVID-19 lockdowns and modern technologies, the risk of what is called ‘image-based abuse’ has greatly increased across the world. Image-based abuse is when someone shares, or threatens to share, intimate images without the consent of the person in the photo. This includes what is called ‘revenge porn’, a tactic of abuse that includes posting sexually explicit images or videos of a person on the internet, typically by a former sexual partner, without the consent of the person in the photos and with the goal of causing them distress or embarrassment. Australia has made legislative and cultural changes to combat this, becoming one of the most combative governments in the world to these modern issues. However, these issues still stand; it is difficult to govern the internet due to its complicated jurisdiction and difficulties with enforcement.


Online interactions have increased due to COVID, particularly with unmonitored apps like Houseparty which were very popular at the beginning of covid lockdowns in 2020, allowing young people to connect not only with their friends, but with strangers as well. This site led to the reception of many unsolicited images of a sexual nature by victims as young as 13, and the ability to share similar images with ease. While video call apps and sites of this nature allowed young people to connect with their friends, they also made it far easier to screenshot and take images of people without consent. In mid-2021, the NSW government passed the Online Safety Act 2021, giving the eSafety Commissioner greater censorship powers in an effort to combat cyberbullying and image-based abuse. The Office of the eSafety Commissioner can now issue removal notices to digital platforms, and fine companies if they refuse to do so. While Australia is the first country to have a government agency committed to keeping people safe online in the eSafety Commissioner, there tends to be a lack of enforceability in these issues; companies can be fined if they refuse to take down images, but for wealthy and big companies this generally isn’t an issue; the maximum fine is 500 penalty units, each of which is $222. While this is a hefty fine of $111,000 overall, for large companies this is not a very significant punishment, and does not contribute significantly to the prevention of revenge porn.


The NSW Parliament Select Standing Committee on Legal and Constitutional Affairs has made a variety of recommendations in recent years to raise awareness of existing issues surrounding image-based abuse and the ease with which sexual images can be shared. This Committee made recommendations both to minimise the negative effects on victims and to prevent these crimes from occurring in the first place. It recommended that the Australian governments use the term ‘non-consensual sharing of intimate images to minimise negative connotations for victims, and the Commonwealth government should further consider the Australian Law Reform Commission’s pre-existing recommendations to create a statutory course of action to deal with the sentencing and punishment of these offenders. The report clarifies issues with definitions for ease of defining offences; offences classified as image-based abuse now include knowingly or recklessly recording an intimate image without consent; knowingly or recklessly sharing intimate images without consent; and threatening to take and/or share intimate images without consent, regardless of whether or not those images actually exist. In this area of the report, it was also recommended that state and territory governments should follow the lead of the Commonwealth parliament in terms of what they consider to be offences to ensure that these offences are the same all over Australia. Awareness and education was also a significant recommendation, both in the public and within the legal system; there are calls for public awareness and education campaigns by the Children’s eSafety Commissioner and the Australian Federal Police, as well as recognition of the necessity of police basic training to deal with these offences.



Legislation exists in every state and territory besides Tasmania to comprehensively criminalise the non-consensual sharing of explicit materials, but little has happened in the last 5-10 years to reduce instances of image-based abuse, despite the exponential increase of internet usage by younger and younger people. For example, fewer than half of Australia’s population even knows it is a criminal offence to share intimate images without consent, and as a result of this, victims are often still blamed for their abuse due to a lack of cultural change to keep up with the legislative change that is in place. Facebook, YouTube and other social media sites have developed sophisticated algorithms that can help detect images shared non-consensually and flag them with moderators. Similarly, victims of these offences can submit images they believe have been shared to the eSafety commissioner, and a digital footprint is made that does not allow that certain image to be shared on certain social media sites.


While actions have been taken in recent years to attempt to minimise and prevent revenge porn and image-based abuse, it is still a significant issue due to the constant exponential rise of people and young people using the internet. Australia has made legislative and cultural changes to combat these issues, becoming one of the most proactive governments in their response to these modern issues. However, these issues still stand; it is difficult to govern the internet due to its complicated jurisdiction and difficulties with enforcement. Law reform is constantly required in the jurisdiction of the internet in order to create specific legislation and legal responses to respond to this significant issue.


References


ALRC. n.d. ALRC submission to Senate inquiry into ‘revenge porn’ | ALRC. [online] Available at: <https://www.alrc.gov.au/publication/alrc-submission-to-senate-inquiry-into-revenge-porn/> [Accessed 14 September 2022].


Aph.gov.au. n.d. PHENOMENON COLLOQUIALLY REFERRED TO AS 'REVENGE PORN', WHICH INVOLVES SHARING PRIVATE SEXUAL IMAGES AND RECORDINGS OF A PERSON WITHOUT THEIR CONSENT, WITH THE INTENTION TO CAUSE THAT PERSON HARM. [online] Available at: <https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Revenge_porn/Report/b01> [Accessed 14 September 2022].


Boseley, M., 2020. Revenge porn in Australia: the law is only as effective as the law enforcement. [online] The Guardian. Available at: <https://www.theguardian.com/society/2020/may/09/revenge-porn-in-australia-the-law-is-only-as-effective-as-the-law-enforcement> [Accessed 14 September 2022].


Fong, A., 2022. Legal Reform is Needed to Protect Young Women from the Growing Threats of Online Sexual Violence. [online] The Conversation. Available at: <https://www.google.com/url?q=https://theconversation.com/legal-reform-is-needed-to-protect-young-women-from-the-growing-threats-of-online-sexual-violence-174498&sa=D&source=docs&ust=1663209082577193&usg=AOvVaw0T0MjHSclHEuqRseiCv65Q> [Accessed 14 September 2022].


Ruleoflaw.org.au. 2018. [online] Available at: <https://www.ruleoflaw.org.au/wp-content/uploads/2018/06/Crimes-Amendment-Intimate-Images-Act-2017.pdf> [Accessed 14 September 2022].


Tonkin, C., 2022. The Tech Laws Passed by this Government. [online] Information Age. Available at: <https://ia.acs.org.au/article/2022/the-tech-legislation-passed-by-this-govt.html> [Accessed 14 September 2022].


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