Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2016-2017
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
ENHANCING ONLINE SAFETY (NON-CONSENSUAL SHARING OF
INTIMATE IMAGES) BILL 2017
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Communications,
the Honourable Mitch Fifield)
ENHANCING ONLINE SAFETY (NON-CONSENSUAL SHARING OF
INTIMATE IMAGES) BILL 2017
OUTLINE
The Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2017
(the Bill) will amend the Enhancing Online Safety Act 2015 (Online Safety Act) to
implement the Australian Government's commitment to introduce a civil penalty
regime 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 social media service, relevant electronic service, or designated
internet 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 content
might or might not have been obtained with the consent of the person depicted in the
image or video. It is colloquially known as 'revenge porn' and commonly referred to
as 'image-based abuse'.
According to a report published in May 2017 by the Royal Melbourne Institute of
Technology University, 1 in 5 Australians, 1 in 2 Australians with a disability and 1 in
2 Indigenous Australians have experienced the non-consensual sharing of intimate
images. The psychological impact on victims can be significant, and negative
implications (whether perceived or actual) can affect their reputation, family,
employment, social relationships and even 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 can also 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 intimate
images, or the threat to share, often in an attempt to control, blackmail, coerce or
punish a victim (commonly referred to as 'sextortion'). Other motives might include
sexual gratification, fun, social notoriety and/or financial gain.i
In November 2016 the Government undertook to consult on a proposed civil penalty
regime targeted at perpetrators, social media services and website/content hosts which
share intimate images without consent. The Bill was informed by a public
consultation process with a cross section of stakeholders including the Australian
Federal Police, women's safety organisations, mental health experts, schools and
education departments, victims, and the Government's Online Safety Consultative
Working Group. During the public consultation process, there was broad consensus
amongst stakeholders that the primary concern of victims, is the rapid removal of the
offending images.
The intent of the Bill is to send a clear message to the community that the sharing of
intimate images without consent is not an acceptable practice. The Bill will facilitate
the quick removal of images without causing additional distress to the victim. It will
complement existing Commonwealth, state and territory criminal laws and the online
complaints portal pilot which was launched by the Office of the eSafety
Commissioner on 16 October 2017.
2
The Government acknowledges and appreciates that the more prominent social media
service 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. As a result, victims have in
the past, approached these services directly to request removal of intimate images and
videos shared without consent.
The Government expects that these social media providers and content hosts will
continue this good work, and the Bill will not prevent victims from approaching these
services in the first instance, rather than the Office of the eSafety Commissioner, if
they wish to do so. The Government also recognises the strong partnerships that social
media services and content hosts have established with the Commissioner and
envisages that these relationships will continue to be pivotal in protecting Australians
against the non-consensual sharing of intimate images. The measures in this Bill
reflect the Government's ongoing commitment to keep Australians safe online.
The primary measures in the Bill will:
Prohibit the non-consensual posting of, or threatening to post, an intimate image
on a 'social media service', 'relevant electronic service', e.g. email and
SMS/MMS, or a 'designated internet service', e.g. websites and peer to peer file
services. (Item 26, proposed section 44B).
Establish a complaints and objections system to be administered by the
Commissioner. Victims or a person authorised on behalf of a victim will be able
to lodge a complaint directly to the Commissioner where there is reason to believe
that an intimate image has been posted or threatened to be posted without consent.
(Item 24, proposed section 19A).
Facilitate the removal of an image where a person initially consented to an image
being posted and then changed their mind and now wishes to have the image
removed, by enabling them to give the Commissioner an 'objection notice'.
An objection notice may also be lodged on behalf of that person so long as that
person has been authorised to do so. (Item 24, proposed section 19B).
Introduce a civil penalty regime to be administered by the Commissioner. The Bill
will trigger the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory
Powers Act) and allow the Commissioner to utilise a series of graduated responses
to address this issue. These responses include issuing infringement notices,
seeking a civil penalty order from a relevant court, enforceable undertakings, or
seeking an injunction for contraventions of the civil penalty provisions.
Removal notices
Under the Bill, the Commissioner will have the option to issue removal notices to
perpetrators, social media service providers and website and content hosts. Removal
notices require the intimate image be removed within 48 hours after the notice has
been given, or a longer period as the Commissioner allows.
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
3
images, and thus a removal notice or other enforcement action may not be required in
every case.
Definitions
The Bill introduces new definitions including 'consent' and 'intimate image'.
'Consent' to share an intimate image must be express, voluntary and informed.
'Consent' cannot be provided by persons under 18 years of age. This ensures
consistency with Commonwealth criminal offences around the distribution of child
pornography contained in the Criminal Code Act 1995, which applies to images
depicting a person under the age of 18 in a sexual pose or sexual activity. Nor can
consent be given by an adult who is in a mental or physical condition that makes the
person incapable of giving consent, or substantially impairs the capacity of the person
to give consent. (Item 18, proposed section 9E).
The term 'intimate image' refers to images or videos taken in circumstances where an
ordinary reasonable person would have a reasonable expectation of privacy. These
include any depiction of private parts; depiction of private activity; or depiction of
person without attire of religious or cultural significance. (Item 18, proposed section
9B).
Exemptions to the prohibition
The Bill contains exemptions to the prohibition in the form of an exempt post. The
sharing of an intimate image will be an exempt post where the posting of the image is
considered necessary for the enforcement, monitoring compliance with or
investigating a contravention of a law; for the purposes of proceedings in a court or
tribunal; where the post is for genuine medical or scientific reasons; or where an
ordinary reasonable person having regard to particular matters, would consider it
acceptable; or where it is in relation to the performance of functions and exercise of
powers by the Commissioner. (Item 26, proposed section 44M).
The Online Safety Act will also be amended to confer jurisdiction on the Federal
Court of Australia, in addition to the Federal Circuit Court of Australia, as the
relevant courts for provisions enforceable under the Regulatory Powers Act.
The amendments in the Bill will come into effect the day after Royal Assent.
FINANCIAL IMPACT STATEMENT
The Bill might have a minor impact on Commonwealth expenditure or revenue. Any
additional funding for the Office of the eSafety Commissioner to administer the
provisions in this Bill will be considered in the context of the 2018-19 Budget.
4
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
Enhancing Online Safety (Non-consensual sharing of intimate images) Bill 2017
This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
The Bill will amend the Enhancing Online Safety Act 2015 (the Online Safety Act) to
establish a civil penalty regime for the non-consensual sharing of intimate images.
The Bill will:
Prohibit the posting, or threatening to post, of an intimate image without consent
on a social media service, relevant electronic service, or a designated internet
service.
Establish a complaints and objections system in relation to the non-consensual
sharing of intimate images to be administered by the eSafety Commissioner (the
Commissioner).
Provide the Commissioner with powers to issue a removal notice requiring end-
users, hosting service providers, or providers of a social media service, relevant
electronic service or designated internet service, to remove an intimate image
from a service.
Provide the Commissioner with the power to give a person a remedial direction,
directed towards ensuring the person does not contravene the prohibition on the
non-consensual sharing of intimate images.
Establish a civil penalty regime giving the Commissioner the discretion to take
enforcement action under various Parts of the Regulatory Powers (Standard
Provisions) Act 2014 (the Regulatory Powers Act) if there has been a
contravention of the prohibition on the non-consensual sharing of an intimate
image or a remedial direction, or a failure to comply with a removal notice.
Allow the Commissioner to seek a civil penalty order, issue an infringement
notice, obtain an injunction or enforce an undertaking under the Regulatory
Powers Act, or issue a formal warning under the Online Safety Act for
contraventions of the civil penalty provisions.
The phrase 'non-consensual sharing of intimate images' refers to the sharing of an
image or a video of a person in an intimate manner on a social media service, relevant
electronic service, or designated internet service, where the sharing of the image or
video was without the consent of the person depicted in the image or video. It is
colloquially known as 'revenge porn', and commonly referred to as 'image-based
abuse'.
5
According to a report published in May 2017 by the Royal Melbourne Institute of
Technology University, 1 in 5 Australians, 1 in 2 Australians with a disability and 1 in
2 Indigenous Australians have experienced the non-consensual sharing of intimate
images. The psychological impact on victims can be significant, and negative
implications (whether perceived or actual) can affect their reputation, family,
employment, social relationships, and even 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 can also involve mere acquaintances or complete strangers sharing the
images. The practice is generally intended to cause harm, distress, humiliation and
embarrassment, whether through the actual sharing and distribution of intimate
images, or a threat to share intimate images, often in an attempt to control, blackmail,
coerce or punish a victim. Other motives may include sexual gratification, fun, social
notoriety and/or financial gain.
Human rights implications
The Bill engages the following human rights:
the right to freedom of expression primarily contained in Article 19 of the
International Covenant on Civil and Political Rights (the ICCPR), and also
referred to in Articles 12 and 13 of the Convention on the Rights of the Child (the
CROC) and Article 21 of the Convention on the Rights of Persons with
Disabilities (the CRPD);
the prohibition on interference with privacy and attacks on reputation primarily
contained in Article 17 of the ICCPR, and also referred to in Article 16 of the
CROC, and Article 22 of the CRPD;
the right to a fair trial and fair hearing rights primarily contained in Article 14 of
the ICCPR, and also referred to in Article 40 of the CROC;
the right to certain minimum guarantees in criminal proceedings, which are
contained in Article 14(3), (5), (6) and (7) of the ICCPR;
the right to protection from exploitation, violence and abuse primarily contained
in Article 20(2) of the ICCPR, and also referred to in Article 19(1) of the CROC
and Article 16(1) of the CRPD.
These rights, and how they are engaged by the Bill, are discussed below.
Freedom of expression
The right to freedom of expression includes the freedom to seek, receive and impart
information and ideas of all kinds, regardless of frontiers, either orally, in writing or
in print, in the form of art, or through any other any media of choice. Article 19(3) of
the ICCPR explicitly states that the exercise of the right carries with it special duties
and responsibilities. Accordingly, this right may be subject to certain restrictions if the
restrictions are provided for by law and are necessary for the respect of the rights and
reputation of others.
The Bill engages the right to freedom of expression as it prohibits the non-consensual
sharing of intimate images. This policy objective is intrinsically restrictive of freedom
of expression as it restricts the freedom to post or receive certain kinds of images,
6
unless the express and free consent of the person depicted in the image is provided.
Because of this, several provisions of the Bill are restrictive of freedom of expression.
The Bill provides that a person must not post, or make a threat to post, an intimate
image of another person on a social media service, a relevant electronic service, or a
designated internet service without consent. The prohibition applies if either the
person posting the image, or the person depicted in the image, is ordinarily resident in
Australia. The Bill also includes powers for the Commissioner to issue a removal
notice requiring an intimate image to be removed from a social media service,
relevant electronic service, or designated internet service. The Commissioner also has
a power to issue a remedial direction to take action to ensure that the person does not
contravene the prohibition on the non-consensual sharing of intimate images.
Notwithstanding these restrictions, the Bill is nevertheless consistent with the freedom
of expression, as the restrictions are provided for by law, and are necessary for the
respect of the rights and reputation of others. The protection of the privacy of persons
depicted in intimate images from the non-consensual posting of those images is a
legitimate objective, and the measures in the Bill are reasonable, necessary and
proportionate to achieving that objective.
The restrictions will be provided for by law in primary legislation. The Online Safety
Act will be amended by this Bill to include the prohibition on the non-consensual
sharing of intimate images, and to include powers for the Commissioner to issue
removal notices in relation to intimate images which have been posted, and remedial
directions to ensure a person does not contravene the prohibition.
The restrictions are necessary to ensure the respect of the rights and reputation of
others. People have a right to privacy and from attacks on their reputation under
Article 17 of the ICCPR and related conventions. People also have the right to
protection from exploitation, violence and abuse, as contained in Article 20(2) of the
ICCPR and related conventions. At a general level, because of the sensitive and
personal nature of intimate images, people expect that such images are only used for
purposes for which consent was provided. This expectation is reinforced because of
the serious harm that can result from the non-consensual sharing of an intimate image,
and potential impacts this can have on a person's reputation.
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 non-consensual sharing of intimate images is often undertaken for the purposes of
seeking revenge or with the intent to, and the consequence of, causing harm, distress,
humiliation and embarrassment to the victim. Given the motivation, and the impact on
the victim, the non-consensual sharing of an intimate image is often an act of
exploitation and abuse directed towards a vulnerable person.
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. It can have far reaching consequences for
the victim's personal relationships and friendships, and may also impact a victim's
employment or other prospects which are contingent on their reputation.
7
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. The measures in this Bill address this
expectation.
The prohibition is directed to protecting a person's privacy from the non-consensual
sharing of intimate images. The ability of the Commissioner to issue a removal notice
is directed to minimising ongoing harm should an intimate image be shared without
consent, and a remedial direction would be used to ensure a person does not
contravene the prohibition. Often the primary goal of victims is to ensure that the
intimate image is removed as soon as possible, and these powers facilitate that
removal.
The prohibition has been drafted in the least intrusive manner capable of meeting the
policy outcome. The prohibition does not prevent the posting of an intimate image if
there has been free and express consent provided for the posting of the image. The
Bill also includes the concept of an exempt post which would permit the sharing of an
intimate image in particular circumstances. For example, an image could be shared if
it done for the purposes of proceedings in a court or tribunal, if the image is shared for
genuine medical or scientific purposes, or an ordinary reasonable person would
consider the sharing of the image to be acceptable. These factors ensure that the
measures in the Bill are reasonable and proportionate.
It is noted that section 100 of the Online Safety Act provides the Act does not apply to
the extent (if any) that it would impinge the constitutional doctrine of implied
freedom of political communication. This ensures that the amendments in this Bill are
consistent with the right to freedom of expression as it relates to political
communication.
The right to freedom of expression is further protected under the Bill in that decisions
regarding the issuing of removal notices, to remove intimate images shared without
consent, can be appealed to the Administrative Appeals Tribunal, and reviewed by
that Tribunal on their merits.
Overall, to the extent that the Bill engages the right to freedom of expression, it is
consistent with that right because the restrictions are provided for by law and are
necessary for the respect of the rights and reputation of others. The measures in the
Bill are reasonable, necessary and proportionate to achieving the objective of
protecting a person's privacy and reputation, and minimising ongoing harm.
Prohibition on interference with privacy and attacks on reputation
Article 17 recognises the right that no one shall be subjected to arbitrary or unlawful
interference with his or her privacy, family, home or correspondence. It also prohibits
unlawful attacks on a person's reputation, providing that persons have the right to the
protection of the law against such interference or attacks.
Article 17 does not set out the reasons for which the guarantees in it may be limited,
however, limitations contained in other articles, for example, those which are
necessary in a democratic society in the interests of national security, public order, the
protection of the rights or freedoms of others, might be legitimate objectives in
appropriate circumstances. In any event, limitations on privacy must be authorised by
law and must not be arbitrary.
8
To the extent that the Bill interferes with a person's privacy and correspondence by
prohibiting the non-consensual sharing of intimate images, or requiring a person to
remove an intimate image which may be been shared on a social media service,
relevant electronic service, or designated internet service, these restrictions are
authorised by law, serve a legitimate objective, and are not arbitrary.
The restrictions will be provided for by law in primary legislation. The Online Safety
Act will be amended by this Bill to include the prohibition on the non-consensual
sharing of intimate images, and to include powers for the Commissioner to issue a
removal notice in relation to intimate images which have been posted, or a remedial
direction to ensure that a person does not breach the prohibition.
The measures in the Bill are fundamentally directed towards protecting the privacy
and reputation of vulnerable people. As noted above, the non-consensual sharing of an
intimate image is a serious breach of a person's right to privacy, and often has serious,
harmful and reputational consequences for the person depicted in the image. In
prohibiting the non-consensual sharing of intimate images, and facilitating quick
removal of intimate images through issuing removal notices, the Bill promotes the
protection of a person's privacy and reputation. The objectives of harm prevention
and minimisation, and protection of privacy and reputation, are legitimate objectives,
achieved through reasonable and proportionate means, and are not arbitrary.
To the extent that measures in the Bill would permit the Commissioner to collect
personal information, these serve a legitimate objective and are not arbitrary. For
example, the Commissioner may receive personal information through the complaints
or objection notice process, or when conducting an investigation into a complaint. The
collection of this information is necessary to allow for the proper administration of the
non-consensual sharing of intimate images regime established by the Bill, and for the
proper exercise of the Commissioner's powers. It is noted that any personal
information collected by the Commissioner would be appropriately protected, and
dealt with in accordance with the Privacy Act 1988.
The purpose of the Bill is to promote the right to privacy, and to protect people from
attacks on their reputation. To the extent that some of the measures in the Bill restrict
the right to privacy, these restrictions are provided for by law, serve a legitimate
objective, and are not arbitrary.
The right to a fair trial and fair hearing rights; the right to minimum guarantees in
criminal proceedings;
Conferral of jurisdiction on the Federal Court of Australia
Article 14 of the ICCPR provides for the right to a fair and public hearing in civil
proceedings. This includes the right that all persons are equal before the courts and
tribunals, and the right to a fair and public hearing before a competent, independent
and impartial court or tribunal established by law.
The Bill engages this right as it confers jurisdiction on the Federal Court of Australia
in relation to the Commissioner seeking a civil penalty order, applying for an
injunction, or enforcing an enforceable undertaking. The Online Safety Act currently
only confers jurisdiction on the Federal Circuit Court of Australia in relation to these
matters.
Accordingly, to the extent that the measures in the Bill engage this right because it
confers jurisdiction on an additional court, it promotes the right to a fair and public
9
hearing in civil proceedings. The conferral of jurisdiction on an additional court also
ensures that matters can be heard at the lowest level appropriate and ensures that the
workload is spread between multiple courts. The hearing of civil proceedings before
either the Federal Circuit Court of Australia or the Federal Court of Australia, ensures
that a competent, independent and impartial court established by law will hear the
matter.
To the extent the Bill engages this right as a result of conferral of jurisdiction on the
Federal Court of Australia, it is consistent with, and does not limit, that right.
Triggering of civil penalty provisions in the Regulatory Powers Act
Article 14 of the ICCPR recognises certain minimum guarantees in criminal
proceedings. A penalty may be 'criminal' for the purposes of the ICCPR even if it is
'civil' under Australian domestic law. Accordingly, it needs to be considered whether
the triggering of provisions in the Regulatory Powers Act by the Bill would engage
criminal process rights under the ICCPR.
The Bill triggers the civil penalty provisions contained in Part 4 of the Regulatory
Powers Act in relation to a contravention of the prohibition on the non-consensual
sharing of intimate images, failure to comply with a removal notice, and failure to
adhere to a remedial direction. Triggering the civil penalty provisions of the
Regulatory Powers Act could engage criminal process rights if the imposition of civil
penalties is classified as 'criminal' under international human rights law. Article 14 of
the ICCPR requires that, in the determination of criminal charges, everyone shall be
entitled to a fair and public hearing by a competent, independent and impartial
tribunal established by law. Various other rights are provided for persons charged
with criminal offences.
Determining whether penalties could be considered to be criminal under international
human rights law requires consideration of the classification of the penalty provisions
under Australian domestic law, the nature and purpose of the penalties, and the
severity of the penalties.
The penalty provisions in the Bill are expressly classified as civil penalties. The
purpose of these penalties is to encourage compliance with the prohibition on the non-
consensual sharing of intimate images, and compliance with any removal notice or
remedial direction given to a person. The civil penalty provisions in the Bill do not
impose criminal liability, and do not lead to the creation of a criminal record. The
penalties would only apply to those who have breached the prohibition on the non-
consensual sharing of intimate images, or failed to comply with a removal notice or
remedial direction, rather than the public in general.
The amount of 500 penalty units applies to a contravention of a civil penalty provision
(currently $105,000 for a natural person). This amount reflects the extremely serious
nature of the non-consensual sharing of intimate images, and the significant harm and
distress that can be caused to a person from the sharing of an intimate image without
consent. It also reflects that the failure to comply with a removal notice or a remedial
direction can cause significant distress and harm in itself.
It is noted that under the Regulatory Powers Act, when determining the amount of the
penalty to be imposed, a court is required to consider the nature and extent of the
contravention, the loss and damage suffered because of the contravention, the
circumstances in which the contravention took place, and whether the person has been
10
found by a court to have engaged in similar conduct in the past. This provides the
court with a discretion, in light of the circumstances of the case, to impose an
appropriate penalty of up to 500 penalty units if the person is found to be in
contravention of this provision. That is, a court could decide not to impose the full
500 penalty units in relation to a contravention. The penalty provisions do not carry
the possibility of imprisonment.
These factors all suggest that the civil penalties imposed by the Bill are civil rather
criminal in nature. Accordingly, the criminal process rights provided for by Article 14
of the ICCPR are not engaged by the Bill relating to civil penalty orders.
Triggering infringement notice provisions in the Regulatory Powers Act
The Bill also triggers the infringement notice provisions contained in Part 5 of the
Regulatory Powers Act in relation to a contravention of the prohibition on the non-
consensual sharing of intimate images, failure to comply with removal notices, and
failure to adhere to remedial directions. There are no criminal consequences
associated with an infringement notice for a contravention of a civil penalty provision.
For example, an infringement notice does not carry the possibility of imprisonment if
the person does not pay the penalty specified in the notice.
There is a requirement under the Regulatory Powers Act that an infringement notice
state that the person may choose not to pay the penalty and notify them that, if they do
so, proceedings seeking a civil penalty order may be sought against them in a court.
The maximum penalty that an infringement notice can impose on a natural person will
be 12 penalty units, and the person can always request the relevant chief executive to
withdraw the infringement notice.
These factors all suggest that the infringement notice provisions triggered by this Bill
are civil rather than criminal in nature. Accordingly, the criminal process rights
provided for by Article 14 of the ICCPR are not engaged by the Bill in relation to the
issuing of infringement notices for breach of the civil penalty provisions. Further, as
the person may elect to have the matter heard by a court, rather than pay the amount
in the infringement notice, the right to a fair hearing in civil matters provided for by
Article 14(1) of the ICCPR is engaged, but not limited (for the reasons discussed
above).
Triggering enforceable undertaking provisions in the Regulatory Powers Act
The Bill also triggers the enforceable undertaking provisions in Part 6 of the
Regulatory Powers Act, which will allow the Commissioner to accept and enforce
undertakings relating to compliance with the prohibition on the non-consensual
sharing of intimate images, and failure to comply with a removal notice or a remedial
direction. Further, if the Commissioner is satisfied the person has breached the
undertaking, he or she may apply to a relevant court for an order relating to the
undertaking.
11
Accordingly, the triggering of these provisions engages the right to a fair and public
hearing in civil proceedings. As an order enforcing an undertaking can only be made
by the Federal Circuit Court of Australia, or the Federal Court of Australia, both of
which are competent, independent and impartial courts established by law, this right is
engaged but not limited (for the reasons discussed above).
Triggering injunction provisions in the Regulatory Powers Act
The Bill also triggers the injunction provisions in Part 7 of the Regulatory Powers
Act, which will enable the Commissioner to apply to a relevant court for an injunction
restraining the person from engaging in conduct, or requiring the person to do a
particular thing. In particular, the Commissioner would be able to seek an injunction
in relation to a threat to contravene the prohibition on the non-consensual sharing of
intimate images, or a failure to comply with a removal notice or remedial direction.
Triggering the injunction provisions of the Regulatory Powers Act engages the right
to a fair and public hearing in civil proceedings. As an injunction can only be issued
by the Federal Circuit Court of Australia or the Federal Court of Australia, both of
which are competent, independent and impartial courts established by law, this right is
engaged but not limited (for the reasons discussed above).
The right to protection from exploitation, violence and abuse
The right to protection from exploitation, violence and abuse is primarily contained in
Article 20(2) of the ICCPR and other related conventions. The ICCPR and related
conventions requires Australia to take measures to protect persons from exploitation,
violence and abuse.
This right is engaged as the Bill is primarily directed to protecting vulnerable people
from the harm that can result from the non-consensual sharing of an intimate image.
As discussed above, the practice of sharing intimate images without consent is
generally intended to cause harm, distress, humiliation and embarrassment, whether
through the actual sharing, or a threat to share intimate images. This is often done in
an attempt to control, blackmail, coerce or punish a victim. Other motives may
include sexual gratification, fun, social notoriety and/or financial gain. It is clear from
these motivations that the non-consensual sharing of an intimate image is an
exploitative and abusive act that often causes significant harm and distress to the
person depicted in the image.
The Bill promotes the right to protection from exploitation, violence and abuse as it
prohibits the non-consensual sharing of intimate images. The purpose of the Bill is to
deter people from engaging in this behaviour, and to provide the Commissioner with
an appropriate enforcement mechanism to address contraventions of the prohibition.
The Bill also serves the purpose of minimising further harm that may occur as a result
of a contravention of the prohibition, through conferring powers on the Commissioner
to issue removal notices to require removal of the intimate image, and remedial
directions directed at ensuring the prohibition is not contravened.
Accordingly, the Bill is consistent with the right to protection from exploitation,
violence and abuse, as the measures contained in the Bill are directed towards the
protection of persons from exploitation, violence and abuse.
12
Conclusion
This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
To the extent to which measures may engage the right to freedom of expression, and
the prohibition on interference with privacy and unlawful attacks on reputation, the
restrictions are provided for by law, and are reasonable, necessary and proportionate
in serving a legitimate objective.
The measures in the Bill do not limit the right to a fair and public hearing in civil
proceedings, to the extent the measures engage that right.
The measures in the Bill promote the right to protection from exploitation, violence
and abuse.
13
ABBREVIATIONS
The following abbreviations are used in this explanatory memorandum:
BSA Broadcasting Services Act 1992
Bill Enhancing Online Safety (Non-consensual Sharing of
Intimate Images) Bill 2017
Commissioner eSafety Commissioner
Online Safety Act Enhancing Online Safety Act 2015
Regulatory Powers Act Regulatory Powers (Standard Provisions) Act 2014
14
NOTES ON CLAUSES
ENHANCING ONLINE SAFETY (NON-CONSENSUAL SHARING OF
INTIMATE IMAGES) BILL 2017
Clause 1 - Short title
Clause 1 provides that the Bill, when enacted, may be cited as the Enhancing Online
Safety (Non-consensual Sharing of Intimate Images) Act 2017.
This is a broad title and reflects that the content of the Bill is directed to prohibiting
the non-consensual sharing of intimate images using various platforms, and providing
the Commissioner with powers to facilitate quick removal of that image. The title also
reflects that the Bill also contains an objections system in relation to intimate images
that have been shared and consent was subsequently withdrawn.
Clause 2 - Commencement
Clause 2 provides for the commencement of the Bill. The whole of the Bill will
commence on the day after the Bill receives the Royal Assent.
Clause 3 - Schedules
Clause 3 provides that legislation that is specified in a Schedule to the Bill is amended
or repealed as set out in the applicable items in that Schedule, and any other item in a
Schedule has effect according to its terms.
15
SCHEDULE 1--AMENDMENTS
Broadcasting Services Act 1992
Item 1 - After paragraph 169A(a)
Item 1 would insert a reference to section 19C of the Online Safety Act into section
169A of the BSA.
Item 24 of this Bill would insert section 19C into the Online Safety Act, which
provides that the Commissioner may investigate a complaint made that there has been
a non-consensual sharing of an intimate image. The investigation powers in
section 19C have effect subject to Part 13 of the BSA, which contains certain
investigative and information gathering powers of the Commissioner.
Section 169A of the BSA sets out which investigative and information gathering
powers of the Commissioner are to be exercised in accordance with Part 13 of the
BSA. The effect of this amendment is that the Commissioner's investigative and
information gathering powers under section 19C of the Online Safety Act, would
include, and be subject to, those set out in in Part 13 of the BSA.
Enhancing Online Safety Act 2015
Item 2 - Section 3
Item 2 would amend section 3 of the Online Safety Act, which contains the simplified
outline of the Act, to make it clear that the functions of the Commissioner include
administering a complaints and objections system for the non-consensual sharing of
intimate images.
16
Item 3 - At the end of section 3
Item 3 would amend section 3 of the Online Safety Act, which contains the simplified
outline of the Act, to include a description of the complaints and objections system for
the non-consensual sharing of intimate images.
The key aspects of the complaints and objections system are summarised in the
simplified outline of the Act, and include the following components:
A person who posts, or threatens to post, an intimate image without consent
may be liable to a civil penalty.
The provider of a social media service, relevant electronic service, or
designated internet service may be given a removal notice requiring the
provider to remove an intimate image from the service.
An end-user of a social media service, relevant electronic service or
designated internet service who posts an intimate image on the service may be
given a removal notice requiring the end-user to remove the image from the
service.
A hosting service provider who hosts an intimate image may be given a
removal notice requiring the provider to cease hosting the image on the
service.
Item 4 - Section 4
Item 4 would insert in the appropriate order in section 4, the following definitions:
Consent, when used in relation to an intimate image, has the meaning given
by section 9E, to be inserted by item 18 of the Bill.
Data storage device means any article or material from which information is
capable of being reproduced, with or without the aid of any other article or
device. While an example of a disk is provided in the definition, this term is
intended to be broad and will capture any device that can be used to store
data. For example, it will include: a computer, a compact disc, a tablet, a
smartphone, a USB flash drive, a memory card, and other articles or material
from which information is capable of being reproduced.
Designated internet service has the meaning given by section 9A, which
would be inserted by item 18 of the Bill.
Exempt post, when used in relation to an intimate image, has the meaning
given by section 44M, which would be inserted by item 26 of the Bill.
Hosting service has the meaning given by section 9C, which would be
inserted by item 18 of the Bill.
Hosting service provider, means a person who provides a hosting service.
Hosting service would be defined by new section 9C of the Act.
Internet carriage service has the same meaning as in Schedule 5 to the
Broadcasting Services Act 1992, which means a listed carriage service that
enables end-users to access the internet.
17
Intimate image has the meaning given by section 9B, which would be
inserted by item 18 of the Bill.
Objection notice means a notice under section 19B, which would be inserted
by item 24 of the Bill.
On-demand program service has the meaning given by section 9D, which
would be inserted by item 18 of the Bill.
Item 5 - Section 4 (definition of posted)
Item 5 would amend the definition of posted in section 4 of the Act to include a
reference to 'designated internet service'.
The effect of this amendment is that the term posted also captures the posting of
material on a designated internet service. This is required because the prohibition on
the non-consensual sharing of intimate images also extends to the posting of an
intimate image on a designated internet service by an end-user.
Item 6 - Section 4 (at the end of the definition of posted)
Item 6 would insert a note at the end of the definition of posted making it clear that
other parts of speech and grammatical forms of posted have a corresponding meaning.
This alerts readers to the effect of section 18A of the Acts Interpretation Act 1901.
Item 7 - Section 4 (definition of provided)
Item 7 would amend the definition of provided in section 4 of the Act to include a
reference to 'designated internet service'.
The effect of this amendment is that the term provided will also capture material that
is provided on a designated internet service. This is required because the prohibition
on the non-consensual sharing of intimate images also extends to the posting of an
intimate image on a designated internet service by an end-user, and removal notices
can be issued in respect of images that are provided on a designated internet service.
Item 8 - Section 4 (definition of provider)
Item 8 would amend the definition of provider in section 4 of the Act to include a
reference to 'designated internet service'. The definition of provider in section 4 of
the Online Safety Act makes it clear that the term provider has a meaning affected by
section 105 of the Online Safety Act.
The effect of this amendment is that a person will not be a provider of a designated
internet service merely because the person supplies a carriage service that enables
material to be accessed or delivered on that service. The amendment will also make it
clear that a person does not provide a designated internet service if they merely
provide a billing service, or a fee collection service, in relation to the designated
internet service.
This amendment is required because the prohibition on the non-consensual sharing of
intimate images also extends to the sharing of an intimate image on a designated
internet service. However, the intention is not for an internet service provider who
18
merely provides a carriage service to be able to be issued with a removal notice for
providing the intimate image. This amendment, along with item 45 will make this
clear.
Item 9 - Section 4
Item 9 would insert a definition of removal notice which means a notice under
sections 44D, 44E or 44F of the Act, to be inserted by item 26 of this Bill.
The Commissioner has the power to issue a removal notice to: a provider of a social
media service, relevant electronic service, or designated internet service; an end-user;
or a hosting service provider. A removal notice can only be issued if the criteria for
issuing the notice in sections 44D, 44E or 44F are satisfied, and this includes there
having been a complaint about the non-consensual sharing of an intimate image, or in
response to an objection notice in relation to an intimate image.
Item 10 - Section 4 (definition of removed)
Item 10 would amend the definition of removed in section 4 of the Act, to include a
reference to 'designated internet service'.
The effect of this amendment is that the term removed will also capture the removal
of material from a designated internet service. This is required because the prohibition
on the non-consensual sharing of intimate images also extends to the sharing of an
intimate image on a designated internet service, and the term removed will also need
to cover removal of the material from that service.
Item 11 - Section 4
Item 11 would insert a definition of the phrase stored material which means material
kept on a data storage device. Stored material would include material kept in a data
centre, or stored on a computer, a compact disc, a tablet, a smartphone, a USB flash
drive, a memory card, and other articles or material from which information is
capable of being reproduced.
The defined phrase makes it clear that it does not extend to the storage of material on
a highly transitory basis as an integral function of the technology used in its
transmission. The note provides an example of this, which is the momentary buffering
in a router to resolve a path for further transmission. This very limited exception
makes it clear that storage on a highly transitory basis which is a function of the
technology used, will not amount to stored material.
This item would also insert a definition of threat which includes a threat made by any
conduct, whether express or implied and whether conditional or unconditional. This
amendment is required because the prohibition on the non-consensual sharing of
intimate images also extends to the threat to share an intimate image without consent.
This is an inclusive definition which makes it clear that the term threat is to be
broadly interpreted. It is intended that it extends to a threat made by any conduct,
whether that be verbal or physical, express or implied, or a threat which is subject to a
condition that the person do something, or an unconditional threat.
19
Item 12 - Section 6 (heading)
Item 12 would substitute a new heading for section 6 which is 'When material is
provided on a social media service, relevant electronic service or designated internet
service'. This amendment is required because the definition of provided in section 6
will be extended to cover material that is provided on a designated internet service.
Item 13 - Section 6
Item 13 would amend section 6 to include a reference to 'designated internet service'.
The effect of this amendment is that the term provided will also capture material that
is provided on a designated internet service. This is required because the prohibition
on the non-consensual sharing of intimate images also extends to an intimate image
shared on a designated internet service.
An example of material that may be provided on a designated internet service is an
intimate image that is accessible to, or delivered to, one or more people using the
internet service because the image is available for viewing on a website.
However, it is noted that section 105 modifies the meaning of the word provider. A
person will not be a provider of a designated internet service merely because they
provide a carriage service that enables material to be accessed or delivered. This is to
ensure that persons who are merely internet service providers, for example, are not
able to be issued with a removal notice for providing the intimate image. Item 45 will
make this clear.
Item 14 - Section 7 (heading)
Item 14 would substitute a new heading for section 7 which is 'When material is
posted by an end-user of a social media service, relevant electronic service or
designated internet service'. This amendment is required because the definition of
posted in section 7 will be extended to cover material that is provided on a designated
internet service.
Item 15 - Section 7
Item 15 would amend section 7 to include a reference to 'designated internet service'.
The effect of this amendment is that the term posted will also capture material that is
posted on a designated internet service. This is required because the prohibition on the
non-consensual sharing of intimate images also extends to the posting of an intimate
image on a designated internet service by an end-user.
An example of material that may be posted on a designated internet service is an
intimate image that has been posted without consent by an end-user on a pornographic
website that is accessible to, or delivered to, other people using the internet service.
Item 16 - Section 8 (heading)
Item 16 would substitute a new heading for section 8 which is 'When material is
removed from a social media service, relevant electronic service or designated
20
internet service'. This amendment is required because the definition of removed in
section 8 will be extended to cover the removal of material from a designated internet
service.
Item 17 - Section 8
Item 17 would amend section 8 to include a reference to 'designated internet service'.
The effect of this amendment is that the term removed will also capture the removal
of material from a designated internet service. This is required because the prohibition
on the non-consensual sharing of intimate images also extends to the posting of an
intimate image on a designated internet service, and the Commissioner will be able to
issue removal notices in respect of such material.
An example of material that may be removed from a designated internet service is an
intimate image that had previously been posted on a pornographic website, but is no
longer accessible to, nor deliverable to, any end-users in Australia using the service.
Item 18 - After section 9
Item 18 would insert several new definitions which relate to the complaints and
objections system for non-consensual sharing of intimate images.
Proposed section 9A - Designated internet service
Proposed section 9A would insert a definition of designated internet service which
would mean:
A service that allows people to access material using an internet carriage
service.
A service that delivers material to persons having equipment appropriate for
receiving that material, where delivery of the service is by way of an internet
carriage service.
However, a designated internet service would not include:
A social media service, because this type of service is defined in the Act and
the prohibition on the non-consensual sharing of intimate images would
expressly apply to sharing of intimate images using a social media service.
A relevant electronic service, because this type of service is defined in the Act
and the prohibition of the non-consensual sharing of intimate images would
expressly apply to sharing of images using a relevant electronic service.
An on-demand program service, because this type of service streams content
being broadcast on television over the internet (for example, using the ABC
iView application or other simular applications). It is not appropriate for the
non-consensual sharing of intimate images regime established by the Bill to
apply to broadcasters who are regulated, have to comply with licence
conditions and relevant codes of practice, under the Broadcasting Services
Act 1992.
21
A service specified under subsection (2), which would allow the Minister to
specify a particular internet service in the future which would not be a
designated internet service.
Proposed subsection 9A(2) would allow the Minister to specify one or more services
which are not a designated internet service. This would allow the Minister to carve
out from the definition internet services which are not appropriate to be subject to the
regime establishing the prohibition on the non-consensual sharing of intimate images.
The Minister would do this by legislative instrument, which would be subject to
Parliamentary scrutiny through the disallowance process.
Proposed section 9B - Intimate image
Proposed section 9B would set out the circumstances in which material would be
considered an intimate image of a person for the purposes of the Act. There are three
types of intimate images: depictions of a person's private parts; depictions of private
activity; and depictions of a person without attire of religious or cultural significance.
Depiction of private parts
Material will be an intimate image of a person if it depicts, or appears to depict, a
person's genital area or anal area (whether bare or covered by underwear), in
circumstances in which an ordinary reasonable person would reasonably expect to be
afforded privacy.
Material will also be an intimate image of a female, or transgender or intersex person
identifying as female, if it depicts, or appears to depict, either or both of the person's
breasts, in circumstances in which an ordinary reasonable person would reasonably
expect to be afforded privacy.
In most circumstances, an ordinary reasonable person would reasonably expect to be
afforded privacy in relation to these types of images. However, if the image is in
circumstances where an ordinary reasonable person would not reasonably expect to be
afforded privacy, the image will not be an intimate image, for example, an image of
an underwear model will not be an intimate image.
Depiction of private activity
Material will be an intimate image of a person if it depicts, or appears to depict, the
person: in a state of undress, using the toilet, showering, having a bath, engaged in a
sexual act of a kind not ordinarily done in public, or engaged in other like activity; in
circumstances in which an ordinary reasonable person would reasonably expect to be
afforded privacy.
The listed private activities are those where an ordinary reasonable person would
reasonably expect to be afforded privacy. However, if the image is in circumstances
where an ordinary reasonable person would not reasonably expect to be afforded
privacy, the image will not be an intimate image.
Depiction of person without attire of religious or cultural significance
22
Material will be an intimate image of a person if it depicts, or appears to depict, the
person without religious or cultural attire that the person consistently wears whenever
the person is in public, in circumstances in which an ordinary reasonable person
would reasonably expect to be afforded privacy.
This definition recognises that an image of a person without particular religious or
cultural attire that they consistently wear, can cause significant harm to the person.
For example, a Muslim woman who consistently wears a niqab while in public could
become significantly distressed if a picture of her without her niqab was shared.
Similarly, a Sikh man who consistently wears a turban while in public, could suffer
harm and distress if an image of them without their turban was shared.
Each of the above three definitions make it clear that an intimate image can be a still
visual image such as a photograph, or moving visual images such as video recordings.
Images could be photographs, modified photographs, animations, drawings or other
depictions of the person.
As each of the definitions apply to an image that depicts, or appears to depict a
person, this will cover situations where the intimate image may have been modified or
altered (which is also made clear in proposed subsection 9B(5)). This will also cover
situations where it may not be with absolute certainty that the intimate image depicts a
private part, for example, but where it is likely that it does.
To be an intimate image under any of the three definitions, the image must be in
circumstances in which an ordinary reasonable person would reasonably expect to be
afforded privacy. The listed circumstances are generally those in which an ordinary
reasonable person would reasonably expect to be afforded privacy. However, whether
this is the case will turn on the facts and circumstances of each image.
Examples where an ordinary reasonable person may not reasonably expect to be
afforded privacy and therefore an image would not be an intimate image (subject to
any unique facts or circumstances in that particular case) are:
A photograph of an underwear model. An ordinary reasonable person would
not expect an image of an underwear model, specifically taken for the
purpose of advertising underwear, to be a circumstance where there was a
reasonable expectation of privacy.
An image of a person showering using an outdoor shower facility at a public
beach, where the person is still wearing a swimming costume.
Interpretative provisions
Proposed subsection 9B(5) would provide that for the purposes of this section, it is
immaterial whether material has been altered. The effect of this provision is to put it
beyond doubt that an image could still be an intimate image even if it has been altered
or modified. This is to cover the practice known as 'morph porn' or 'parasite porn',
where an image may be altered or modified to transpose one person's head on another
person's body, for example.
23
Proposed subsection 9B(6) makes it clear that if material depicts, or appears to depict,
a part of the body of a person, the material is taken to depict the person, or appear to
depict the person, as the case requires. The effect of this provision is to make it clear
that the person does not need to be identifiable from the image, or for the image to
include the person's face, in order to be an intimate image. For example, a depiction
of a female's bare breasts and chest only, would be taken to be a depiction of the
person notwithstanding that the person's face was not included in the image.
24
Proposed section 9C - Hosting service
Proposed section 9C would insert a definition of hosting service for the purposes of
the Act.
If a person (the first person) hosts stored material that has been posted on a social
media service, a relevant electronic service, or a designated internet service, and the
first person or another person, provides one of those services on which the hosted
material is provided, the hosting of the stored material by the first person is taken to
be the provision of a hosting service.
The definition of hosting service covers the hosting and storage of content and data by
a person in relation to those listed services. The definition of hosting service does not
require the hosting service provider to be providing one of those listed services
(although, often they may also provide one of the services). An example of a
provision of a hosting service is where a person hosts stored material or content for a
website, or for an email service.
It is noted that a search engine which merely indexes content and makes it searchable
would not meet this definition of hosting service.
A definition of hosting service is required because under the complaints and
objections system for non-consensual sharing of intimate images, a hosting service
provider who hosts an intimate image may be given a removal notice requiring the
provider to cease hosting the image.
Proposed section 9D - On-demand program service
Proposed section 9D would define the phrase on-demand program service for the
purposes of the Act.
An on-demand program service is generally a service that is provided to end-users
using an internet carriage service, which does no more than provide material that is
identical to a program that has been, or is being, transmitted by broadcasters.
Examples of on-demand program services include SBS On Demand, and ABC iView
and other similar applications. The provision contains a list of broadcaster services to
which an on-demand program service relates. It is noted that if the on-demand
program service material has not been transmitted by one of these services, it will not
be captured by this definition.
When determining whether material is identical to a program, differences that are
attributable to the technical characteristics of the provision or transmission are to be
disregarded, as is the presence or absence of a watermark-type logo or insignia.
Proposed subsection 9D(4) is a definitional provision and provides that an expression
used in paragraph 9D(1)(a) will have the same meaning as it has in the Broadcasting
Services Act 1992.
A definition of on-demand program services is required, in order to exclude this type
of service from the definition of designated internet service. On-demand program
service material, to the extent it is also transmitted on the broadcaster's service, will
be regulated under the Broadcasting Services Act 1992 and the broadcasters would be
25
subject to licence conditions under that Act. Accordingly, it is not it is not appropriate
for the regime relating to the non-consensual sharing of intimate images to apply to
programs that are shown on an on-demand program service simply because they are
transmitted over the internet, if those programs have, or are being, broadcast on
television.
Proposed section 9E - Consent
Proposed section 9E would define consent for the purposes of the application of an
Act to an intimate image.
The definition provides that in relation to an intimate image, consent must be express,
voluntary, and informed. This requires consent to be clearly given for the particular
instance of the sharing, which could be verbal or in writing. This would require
consent to be freely given, and not given under some kind of threat, warning,
condition or consequence. It would also require consent to be informed, it is expected
that informed consent would include information about whom the image will be
shared with, and the purpose of the sharing.
Under the regime established by this Bill, consent will need to be in relation to the
particular instance of sharing. For example, consent to share an image with one
individual would not cover the sharing of an image with a different individual. In this
situation, if the person wanted to share the image with another person, further consent
would be required to share the image with that other person, and that consent must be
express, voluntary and informed.
Consent for the further distribution of an intimate image once received would also be
required. That is, in circumstances where a person had consent to share an intimate
image with a person, if the person who received the image wanted to share that image,
consent of the person depicted in the image would be required.
The definition also sets out situations when consent cannot be provided in relation to
an intimate image:
Consent to share an intimate image cannot be given by a child, who is a
person under the age of 18. This is because, to the extent that the definition of
intimate image overlaps with the definition of child pornography material in
the Commonwealth Criminal Code Act 1995, a lower age of consent for the
distribution of intimate images would create an inappropriate inconsistency
between the criminal and civil frameworks. The effect of this item is that a
person under the age of 18 cannot provide consent to the sharing by another
person of an intimate image of themselves.
Consent to share an intimate image cannot be given by an adult who is in a
mental or physical condition, whether temporary or permanent, that makes the
person incapable of giving consent, or substantially impairs their capacity to
give consent. This is to make it clear that an adult who may be unable to
comprehend the concept of consent, and the consequences of sharing of the
image, for example because they are suffering from a mental disability,
cannot provide express, voluntary and informed consent.
26
Item 19 - Section 13
Item 19 would make an amendment to the simplified outline to Part 2 of the Act. The
amendment would make it clear that one of the functions of the Commissioner is to
administer a complaints and objections system for non-consensual sharing of intimate
images.
Item 20 - Part 3 (heading)
Item 20 would replace the heading of Part 3 with 'Complaints and objections'. This
amendment reflects that Part 3 will contain provisions that relate to making
complaints in relation to cyber-bullying material, and provisions that relate to
complaints and objections in relation to intimate images.
Item 21 - Before section 17
Item 21 would insert the heading 'Division 1 - Introduction' which is required
because Part 3 will be split into different Divisions relating to subject matter. Division
1 contains the simplified outline to the Part.
Item 22 - At the end of section 17
Item 22 would make an amendment to the simplified outline to Part 3 of the Act. The
amendment would make it clear that there is to be a complaints and objections system
for the non-consensual sharing of intimate images.
Item 23 - Before section 18
Item 23 would insert the heading 'Division 2 - Complaints about cyber-bullying
material' before section 18. This reflects that the following provision relate to
complaints in respect of the existing cyber-bullying regime.
Item 24 - At the end of Part 3
Item 24 would insert Division 3 at the end of Part 3 of the Act.
Division 3--Complaints about, and objections to, intimate images
This heading reflects that Division 3 contains provisions relating to complaints about
the non-consensual sharing of intimate images, and objections to intimate images
previously shared with consent.
Proposed section 19A - Complaints
Proposed section 19A would allow a person who is the subject of an intimate image to
make a complaint to the Commissioner if they believe the image has been shared
without their consent.
The provision makes it clear that the person can make a complaint even if they are not
able to identify the person who allegedly shared the image without consent, however
they must include a statement to this effect when making a complaint to the
Commissioner. This reflects that victims of non-consensual sharing of intimate
27
images may not always know the perpetrator, for example, because the image has
been shared by multiple people. This will also assist the Commissioner in deciding
which type of removal notice to issue, should he or she decide to exercise these
powers, as notices can be issued to end-users; providers of social media services,
relevant electronic services, or designated internet services; or to hosting service
providers.
A person can make a complaint to the Commissioner in a number of ways, however it
is anticipated that most complaints will be lodged via the Office of the eSafety
Commissioner's online complaints portal. Other methods would include via the email,
or over the telephone.
Proposed section 19A would also provide for an authorised person to make a
complaint to the Commissioner on behalf of a person who is the subject of an intimate
image that has allegedly been shared without their consent, in limited circumstances.
Those circumstances are:
The person depicted in the image has authorised, verbally or in writing, the
person to make a complaint about the matter. An example of a situation where
a complaint may be made by an authorised person is where the victim wishes
to remain anonymous to minimise further distress when going through the
process, and they authorise someone they trust to make the complaint on their
behalf. Another example where a person may be authorised to make a
complaint is where a child authorises on older sibling to make a complaint on
their behalf.
The person depicted in the image is a child under the age of 16 years, and the
authorised person is a parent or guardian of the depicted person. In these
circumstances, the child is not required to authorise the parent or guardian to
make a complaint, the parent or guardian can make a complaint if a child is
under the age of 16 and a person has shared an intimate image of the child
(noting under the definition of consent in proposed section 9E, a child under
the age of 18 cannot provide consent to share an intimate image).
The person depicted in the image is in a mental or physical condition, whether
temporary or permanent, that makes the person incapable of managing their
affairs, and the authorised person is a parent or guardian of the depicted
person. Similarly, in these circumstances, the person is not required to
authorise the parent or guardian to make a complaint, the parent or guardian
can make a complaint if the person is incapable of managing their own affairs
and there has been a contravention of the prohibition on the non-consensual
sharing of an intimate image.
If an authorised person is making a complaint, the authorised person must make a
declaration to the Commissioner indicating that the person is entitled to make the
complaint on behalf of the person depicted in the image.
28
Proposed section 19B - Objection notice
Proposed section 19B would allow a person who is the subject of an intimate image to
give an objection notice to the Commissioner in relation to that image.
The criteria for the giving of an objection notice by a person to the Commissioner are:
The intimate image was posted on a social media service, a relevant electronic
service, or a designated internet service by an end-user of the service;
The posting of the image on the service did not constitute an exempt post, as
defined in proposed section 44M; and
There was a link to Australia, which would be satisfied if the depicted person
or the end user were ordinarily resident in Australia, or the intimate image is
hosted in Australia.
It is expected that people will be able to give an objection notice in a number of ways,
these may include via email, through the online complaints portal, or in person.
A person may give an objection notice to the Commissioner even if the depicted
person consented to the posting of the intimate image on the service. That is, an
objection notice can be given to the Commissioner even if there was no breach of the
prohibition contained in proposed section 44B of the Act. One of the purposes of the
objection notice is to provide an avenue to seek removal of intimate images that a
person may regret providing consent to share the image, or the person is suffering
distress or harm that was not foreseen at the time they provided consent.
If the criteria for the giving of an objection notice in relation to another person have
been met, proposed section 19B would also provide for an authorised person to make
a complaint to the Commissioner on behalf of a person who is depicted in the intimate
image that has allegedly been shared, in limited circumstances. Those circumstances
are:
The person depicted in the image has authorised, verbally or in writing, the
person to give an objection notice to the Commissioner. An example of a
situation where an objection notice may be given by an authorised person is
where the victim wishes to remain anonymous to minimise further distress,
and they authorise someone they trust to give the objection notice on their
behalf.
The person depicted in the image is a child under the age of 16 years, and the
authorised person is a parent or guardian of the depicted person. In these
circumstances, the child is not required to authorise the parent or guardian to
give the objection notice, the parent or guardian can give the notice if a child
is under the age of 16 and a person has shared an intimate image of the child.
The person depicted in the image is in a mental or physical condition, whether
temporary or permanent, that makes the person incapable of managing their
affairs, and the authorised person is a parent or guardian of the depicted
person. Similarly, in these circumstances, the person is not required to
29
authorise the parent or guardian to give the objection notice, the parent or
guardian can give the notice if the person is incapable of managing their own
affairs and an intimate image has been shared.
If an authorised person is giving an objection notice to the Commissioner, the
authorised person must make a declaration to the Commissioner indicating that the
person is entitled to give the notice on behalf of the person depicted in the image.
An authorised person may give an objection notice to the Commissioner even if the
depicted person consented to the posting of the intimate image on the service. This
reflects that the intention of the objection notices is to provide an avenue for people to
seek removal of intimate images, even if they consented to the sharing of the image in
the past.
Proposed section 19B also includes a transitional provision which makes it clear that
if an intimate image was posted on a social media service, a relevant electronic
service, or a designated internet service, before commencement of this provision, the
section does not apply to the posting of the image. However, if the image that was
posted on the relevant service prior to commencement continues to be provided on
that service, this section will apply.
The effect of this section is to allow the giving of an objection notice in relation to an
intimate image which may have been posted prior to the commencement of the
section, but is still available to be accessed after commencement as it continues to be
provided on the relevant service. It will ensure that the Commissioner can exercise his
or her powers, if appropriate, in relation to an intimate image that was posted prior to
commencement, but is still accessible on the service.
Proposed section 19C - Investigation of complaints
Proposed section 19C would provide the Commissioner with the discretion to
investigate a complaint made under proposed section 19A. The discretionary nature of
this power provides flexibility to the Commissioner to decide which complaints will
be investigated, and will allow the Commissioner to appropriately direct resources to
where they are needed most.
The proposed provision makes it clear that the Commissioner can conduct an
investigation, obtain information, and make such inquiries as the Commissioner
thinks fit. This reflects the intention that the Commissioner should be able to conduct
any investigation in a manner that he or she considers appropriate. It is expected that
the Commissioner will develop appropriate procedures for the acceptance,
investigation and closing of complaints.
However, these powers of the Commissioner have effect subject to Part 13 of the
BSA which provides the Commissioner with certain investigative powers. Those
powers include the power to summon persons to attend before the Commissioner, or a
delegate, to provide a document or answer questions, examine a person under oath or
affirmation, or require the production of documents for inspection. These existing
powers provide appropriate information gathering powers for the Commissioner to
utilise in any investigation he or she undertakes under proposed section 19C.
30
The proposed provision also makes it clear that the Commissioner can terminate an
investigation under this section. The effect of this provision is that after the
Commissioner commences an investigation, if the Commissioner decides not to
further pursue the investigation, the Commissioner can terminate that investigation.
This could occur, for example, in circumstances where the Commissioner commenced
an investigation and, based on initial inquiries, determined that the complaint did not
have any merit.
Proposed section 19D - Commissioner's response to objection notices
Proposed section 19D would provide that if an objection notice is given to the
Commissioner under proposed section 19B in relation to an intimate image, the
Commissioner may consider whether to give a removal notice in relation to the image.
The effect of this provision is to make it clear that if the Commissioner has received
an objection notice under proposed section 19B, the Commissioner has the discretion
to decide whether to give a removal notice under proposed sections 44D, 44E or 44F
in relation to the intimate image. The discretionary nature of this power provides
flexibility to the Commissioner to decide when objection notices will be considered,
allowing resources to be directed to where they are needed most.
Item 25 - Part 5 (heading)
Item 25 would replace the heading of Part 5 with 'End-user notices relating to cyber-
bullying material'. This amendment reflects that Part 5 will contain provisions
relating to end-user notices given in respect of cyber-bullying material.
Item 26 - After Part 5
Item 26 would insert Part 5A into the Act, which contains the prohibition on the non-
consensual sharing of intimate images, and the powers of the Commissioner to issue
removal notices and give remedial directions.
Part 5A-- Non-consensual sharing of intimate images
Division 1 -- Introduction
Proposed section 44A - Simplified outline of this Part
Proposed section 44A would insert the simplified outline for Part 5A of the Act. The
simplified outline would provide:
A person who posts, or threatens to post, an intimate image without the
consent of the person depicted in the image may be liable to a civil penalty.
The provider of a social media service, relevant electronic service, or
designated internet service may be given a removal notice requiring the
provider to remove an intimate image from the service.
An end-user of a social media service, relevant electronic service, or
designated internet service who posts an intimate image on the service may be
31
given a removal notice requiring the end-user to remove the image from the
service.
A hosting service provider who hosts an intimate image may be given a
removal notice requiring the provider to cease hosting the image.
Division 2 -- Intimate images must not be posted without consent etc.
Proposed section 44B - Posting an intimate image
Proposed section 44B would insert the prohibition on the non-consensual sharing of
intimate images.
The section would provide that a person must not post, or make a threat to post, an
intimate image of another person without consent on a social media service, a relevant
electronic service, or a designated internet service. For the prohibition to apply, either
the person posting the intimate image, or the person depicted in the image, is to be
ordinarily resident in Australia. This link would ensure that there is an appropriate
connection to Australia for the purposes of the Commissioner exercising his or her
powers.
This is a civil penalty provision and 500 penalty units attaches to a contravention of
this provision. Civil penalty provisions are enforceable under Part 4 of the Regulatory
Powers Act, in accordance with subsection 46(1) of the Act. Under the Regulatory
Powers Act, the amount of 500 penalty units currently equates to $105,000 for
individuals, and $525,000 for a body corporate. This amount reflects the extremely
serious nature of the non-consensual sharing of intimate images, and the significant
harm and distress that can be caused to a person from the sharing of intimate images.
The section would make it clear that the prohibition does not apply if the person
depicted in the intimate image consented to the sharing of the image. This reflects that
the targeted behaviour is the sharing of intimate images without the person's consent.
If the person consented to the sharing of the intimate image, the prohibition would not
be contravened.
There is a note under subsection (2) which would provide that in proceedings for a
civil penalty order against a person, the person bears an evidential burden in relation
to consent and refers the reader to section 96 of the Regulatory Powers Act. The effect
of this is that if the person is claiming the prohibition did not apply because the person
depicted in the image consented to the sharing of the image, the person would be
required to provide evidence that consent for the sharing of the image was given.
The section also makes it clear that the prohibition does not apply in relation to an
intimate image of a person without attire of religious or cultural significance where
the person who shared the image did not know that the person who is depicted in the
image consistently wore that attire whenever the person is in public. This exception is
required because, unlike the other definitions of intimate images in subsection 9B(2)
and (3), it may not be clear from the image itself that it is an intimate image. This is
because whether the image would be an intimate image will turn on the person's
practice in relation wearing of cultural or religious attire in public.
32
There is a note under subsection (3) which would provide that in proceedings for a
civil penalty order against a person, the person bears an evidential burden in relation
to showing that the person was not aware that the person depicted in the image
consistently wore attire of religious or cultural significance in public. The effect of
this is that if the person is claiming the prohibition did not apply because they did not
know that the person depicted in the image consistently wore attire of religious or
cultural significance in public, the person relying on this exception would be required
to provide evidence of the lack of knowledge.
The section would also make it clear that the prohibition does not apply if the sharing
of the intimate image is, or would be, an exempt post. An exempt post would be
defined in proposed section 44M, and provides an exemption to the prohibition in
certain circumstances.
There is a note under subsection (4) which would provide that in proceedings for a
civil penalty order against a person, the person bears an evidential burden in relation
to showing that the sharing of an image was an exempt post. The effect of this is that
if the person is claiming that the prohibition does not apply because the sharing was
an exempt post, the person relying on this exception would be required to provide
evidence that the post was in fact an exempt post.
Proposed section 44C - Formal warning
Proposed section 44C would provide the Commissioner with the discretion to issue a
formal warning if a person contravenes the prohibition on the non-consensual sharing
of intimate images.
This is an alternative mechanism available to the Commissioner instead of taking
other enforcement action. A formal warning provides a lighter touch mechanism
which the Commissioner may choose to use. The Commissioner may issue a formal
warning instead of pursuing a civil penalty order or issuing an infringement notice
where, for example, it is the first contravention by the person, or the person is a child.
Whether a formal warning is issued instead of pursing other options is at the
discretion of the Commissioner.
Division 3 -- Removal notices
Proposed section 44D - Removal notice given to the provider of a social media
service, relevant electronic service or designated internet service
Proposed section 44D would provide the Commissioner with the power, in certain
circumstances, to give the provider of a social media service, relevant electronic
service, or designated internet service a notice requiring the provider to remove an
intimate image that was provided on the service. These notices are given to service
providers, as they may be best placed to ensure quick removal of the image from their
particular service.
However, given the working relationship the Commissioner has with social media
services and content hosts, and the good work these service providers are undertaking
in combating the non-consensual sharing of intimate images, it is expected that the
Commissioner would ordinarily rely on existing relationships, or other non-formal
33
avenues to achieve the removal of the intimate image rather than giving a removal
notice to the service provider.
Before the Commissioner can give a removal notice in relation to an intimate image,
there must be a complaint made to the Commissioner that the image was shared
without consent under proposed section 19A, or an objection notice given to the
Commissioner in relation to the image under proposed section 19B. This ensures that
the Commissioner's power is only enlivened if the person depicted in the image, or an
authorised person, has complained, or objected, to the intimate image.
Another criteria that must be met, is that the intimate image was posted on the service
by an end-user of the service. For example, an intimate image posted on a website or a
peer to peer sharing service by an end-user of the website or the service would meet
this criteria. An intimate image that is merely indexed and made searchable by a
search engine would not have been posted on the search engine by an end-user of the
search engine, and accordingly would not meet this criteria.
The removal notice would require the provider to take all reasonable steps to ensure
the removal of the intimate image from the service, and do so within 48 hours. The
Commissioner has the power to extend the timeframe for removal of the intimate
image under the notice. The period of 48 hours for removal of the notice reflects that
the primary concern of the person depicted in the image is often the removal of the
image as quickly as possible.
The removal notice must include, as far as is reasonably practicable, enough
information for the service provider to be able to identify the intimate image and
remove the image in compliance with the notice. This information could be the URL
address, or details of the specific site that the intimate image is hosted on, for
example. This is to ensure that the service provider is able to quickly locate, and
remove the intimate image in compliance with the notice.
If the Commissioner was to decide not to issue a removal notice to the service
provider, this section would also require the Commissioner to give written notice of
the refusal to the person who made the complaint, or lodged the objection notice, in
relation to the intimate image. It is expected that the Commissioner would also
include reasons why the notice was not issued in the circumstances.
Proposed section 44E - Removal notice given to an end-user
Proposed section 44E would provide the Commissioner with the power, in certain
circumstances, to give an end-user a notice requiring the person to remove an intimate
image that was provided on a social media service, a relevant electronic service, or a
designated internet service. The effect of this is that the Commissioner can require the
person who shared the intimate image to remove the image from the service on which
it was provided.
Before the Commissioner can give a removal notice in relation to an intimate image,
there must be a complaint made to the Commissioner that the image was shared
without consent under proposed section 19A, or an objection notice given to the
Commissioner in relation to the image under proposed section 19B. This ensures that
34
the Commissioner's power is only enlivened if the person depicted in the image, or an
authorised person, has complained, or objected, to the intimate image.
The removal notice would require the end-user to take all reasonable steps to ensure
the removal of the intimate image from the service, and do so within 48 hours. The
Commissioner has the power to extend the timeframe for removal of the intimate
image under the notice. The period of 48 hours for removal of the notice reflects that
the primary concern of the person depicted in the image is often the removal of the
image as quickly as possible.
The removal notice must include, as far as is reasonably practicable, enough
information for the end-user to be able to identify the intimate image and remove the
image in compliance with the notice. This information could be the URL address, or
details of the email or blog in which the intimate image was shared, for example. This
is to ensure that the end-user is able to quickly locate, and remove the intimate image.
If the Commissioner was to decide not to issue a removal notice to the end-user, this
section would also require the Commissioner to give written notice of the refusal to
the person who made the complaint, or lodged the objection notice, in relation to the
intimate image. It is expected that the Commissioner would also include reasons why
the notice was not issued in the circumstances.
Proposed section 44F - Removal notice given to a hosting service provider
Proposed section 44F would provide the Commissioner with the power, in certain
circumstances, to give a hosting service provider a notice require the provider to
remove an intimate image that was provided on a social media service, a relevant
electronic service, or a designated internet service. The effect of this is that the
Commissioner can require those who host content, such as a website, to remove an
intimate image from the service on which it was provided.
Before the Commissioner can give a removal notice in relation to an intimate image,
there must be a complaint made to the Commissioner that the image was shared
without consent under proposed section 19A, or an objection notice given to the
Commissioner in relation to the image under proposed section 19B. This ensures that
the Commissioner's power is only enlivened if the person depicted in the image, or
authorised person, has complained, or objected, to the intimate image.
The removal notice would require the hosting service provider to take all reasonable
steps to cease hosting the intimate image on the service, and do so within 48 hours.
The Commissioner has the power to extend the timeframe for removal of the intimate
image under the notice. The period of 48 hours for removal of the notice reflects that
the primary concern of the person depicted in the image is often the removal of the
image as quickly as possible.
The removal notice must include, as far as is reasonably practicable, enough
information for the hosting service provider to be able to identify the intimate image
and remove the image in compliance with the notice. This information could be the
URL address, or details of the website on which the image is hosted, for example.
This is to ensure that the hosting service provider is able to quickly locate, and
remove the intimate image.
35
If the Commissioner was to decide not to issue a removal notice to the hosting service
provider, this section would also require the Commissioner to give written notice of
the refusal to the person who made the complaint, or lodged the objection notice, in
relation to the intimate image. It is expected that the Commissioner would also
include reasons why the notice was not issued in the circumstances.
Proposed section 44G - Compliance with removal notice
Proposed section 44G would require a person to comply with a requirement under a
removal notice to the extent that the person is capable of doing so. The effect of this
provision is that if a person has received a removal notice to remove an intimate
image from a service and they have the capacity to remove that image, they must
comply with the notice.
This is a civil penalty provision, and 500 penalty units attach to a contravention of this
provision. Civil penalty provisions are enforceable under Part 4 of the Regulatory
Powers Act, in accordance with subsection 46(1) of the Act. If a person refuses to
comply with a social media service notice, daily penalties for contraventions of clause
36 would apply under section 93 of the Regulatory Powers Act.
Under the Regulatory Powers Act the amount of 500 penalty units currently equates
to $105,000 for individuals, and $525,000 for a body corporate. This amount reflects
the extremely serious nature of the non-consensual sharing of intimate images, and
the significant harm and distress that can be caused to a person from the sharing of
intimate images. In particular, it reflects that the failure to comply with a removal
notice can cause significant distress and harm in itself.
It is noted that under the Regulatory Powers Act when determining the amount of the
penalty to be imposed, a court is required to consider the nature and extent of the
contravention, the loss and damage suffered because of the contravention, the
circumstances in which the contravention took place, and whether the person has been
found by a court to have engaged in similar conduct in the past. This provides the
court with a discretion, in light of the circumstances of the case, to impose a penalty
of up to 500 penalty units if the person has been found to be in contravention of this
provision.
Proposed section 44H - Formal warning
Proposed section 44H would provide the Commissioner with the discretion to issue a
formal warning if a person does not comply with a removal notice.
This is an alternative mechanism available to the Commissioner instead of taking
other enforcement action. A formal warning provides a lighter touch mechanism
which the Commissioner may choose to use. Circumstances where the Commissioner
may issue a formal warning instead of pursuing a civil penalty order, or issuing an
infringement notice, may be where it is the first contravention by the person. Whether
a formal warning is issued instead of pursing other options is a decision for the
Commissioner.
36
Proposed section 44J - Transitional
Proposed section 44J would include a transitional provision which makes it clear that
if an intimate image was posted on a social media service, a relevant electronic
service, or a designated internet service, before commencement of this provision, the
Division does not apply to the posting of the image. However, if the image that was
posted on the relevant service prior to commencement of this section continues to be
provided on that service after commencement, this section will apply.
The effect of this section is to allow the giving of a removal notice in relation to an
intimate image which may have been posted prior to the commencement of the
section, but is still available to be accessed after commencement as it continues to be
provided on the relevant service. It will ensure that the Commissioner can exercise his
or her powers to issue a removal notice, if appropriate, in relation to an intimate
image that was posted prior to commencement, but is still accessible on the service.
Division 4 -- Miscellaneous
Proposed section 44K - Remedial direction
Proposed section 44K would insert a provision which would allow the Minister to
give a person a remedial direction if a person has contravened, or is contravening, the
prohibition on the non-consensual sharing of intimate images in proposed section
44B.
The Commissioner may give a person a written direction requiring the person to take
specified action directed towards ensuring that the person does not contravene
proposed section 44B in the future. There is a note referring readers to subsection
33(3) of the Acts Interpretation Act 1901 which makes it clear that this power is to be
construed to allow the Commissioner to repeal, rescind, revoke, amend, or vary the
direction.
This is a civil penalty provision, and 500 penalty units attach to a contravention of this
provision. Civil penalty provisions are enforceable under Part 4 of the Regulatory
Powers Act, in accordance with subsection 46(1) of the Act. If a person refuses to
comply with a social media service notice, daily penalties for contraventions of clause
36 would apply under section 93 of the Regulatory Powers Act.
Under the Regulatory Powers Act the amount of 500 penalty units currently equates
to $105,000 for natural persons, and $525,000 for a body corporate. This amount
reflects the extremely serious nature of the non-consensual sharing of intimate
images, and the significant harm and distress that can be caused to a person from the
sharing of intimate images. In particular, it reflects that the failure to comply with a
removal notice can cause significant distress and harm in itself.
It is noted that under the Regulatory Powers Act when determining the amount of the
penalty to be imposed, a court is required to consider the nature and extent of the
contravention, the loss and damage suffered because of the contravention, the
circumstances in which the contravention took place, and whether the person has been
found by a court to have engaged in similar conduct in the past. This provides the
court with a discretion, in light of the circumstances of the case, to impose a penalty
37
up to an amount of 500 penalty units if the person has been found to be in
contravention of this provision.
Proposed section 44K makes it clear that a direction given to a person under this
provision is not a legislative instrument.
Proposed section 44L - Formal warning
Proposed section 44L would provide the Commissioner with the discretion to issue a
formal warning if a person contravenes a remedial direction.
This is an alternative mechanism available to the Commissioner instead of taking
other enforcement action. A formal warning provides a lighter touch mechanism
which the Commissioner may choose to use. The Commissioner may issue a formal
warning instead of pursuing a civil penalty order or issuing an infringement notice
where, for example, it is the first contravention by the person, or the person is a child.
Whether a formal warning is issued instead of pursing other options is a decision for
the Commissioner.
Proposed section 44M - Exempt post of an intimate image
Proposed section 44M would insert a definition of an exempt post. If an intimate
image was posted on a social media service, relevant electronic service, or designated
internet service, but the sharing of the intimate image is an exempt post, the
prohibition on the non-consensual sharing of an intimate image would not apply, nor
would the Commissioner be able to issue a removal notice.
The posting of an intimate image would be an exempt post if:
It was necessary for, or of assistance in, enforcing a law of the
Commonwealth, State or Territory, or monitoring compliance with or
investigating a contravention of a law of the Commonwealth, a State or a
Territory. For example, the Commissioner could share an intimate image with
the Australian Federal Police who may be investigating whether the sharing of
the image amounted to a criminal offence under the Criminal Code Act 1995
of using a carriage service to menace, harass or cause offence.
The post is for the purposes of proceedings in a court or tribunal. For example,
if a person applied to the Administrative Appeals Tribunal in relation to a
decision to issue a removal notice, the Commissioner could electronically
provide the Tribunal with the intimate image for the purposes of the review of
the decision.
The post is for a genuine medical or scientific purpose. For example, an image
taken of a child by a doctor to send to a colleague to discuss treatment options,
where that image may otherwise amount to an intimate image.
An ordinary reasonable person would consider the sharing of the image
acceptable, having regard to various matters. This exception is to ensure that
images that are considered socially acceptable to share, can in fact be shared,
notwithstanding they may meet the definition of intimate image. Examples of
38
this include, historical images of indigenous Australians or other indigenous
peoples, family photos of small children being bathed by their parents,
photographs of models that were specifically taken with permission for
advertising or publication, or images that are solely satirical in nature.
The post was by a protected person, and the sharing of the image was in
connection with the exercise of a power, or the performance of a function,
conferred on the Commissioner under the Online Safety Act. For example, a
staff member of the Office of the eSafety Commissioner shared an image with
another staff member in connection with an investigation into a complaint
made regarding the image.
The section also includes a power for the Minister to determine, by legislative
instrument, one or more conditions which, if satisfied, would mean the post was
exempt. This would allow for, in the future, the Minister to determine that a certain
post, or class of posts, were to be exempt posts.
Item 27 - Section 45
Item 27 would amend section 45 of the Online Safety Act, which contains the
simplified outline to Part 6 of the Act. The amendments make it clear that
infringement notices, enforceable undertakings and injunctions, are enforcement
powers that are contained in Part 6 of the Act.
Item 28 - Subsection 46(3)
Item 28 would amend current subsection 46(3) to extend jurisdiction to the Federal
Court of Australia, in relation to enforcing a civil penalty provision.
The effect of this is that both the Federal Circuit Court of Australia, and the Federal
Court of Australia will be relevant courts for the purposes of Part 4 of the Regulatory
Powers Act. This means that the Commissioner can seek to enforce a civil penalty
provision in either of these courts, ensuring that matters can be heard at the lowest
level appropriate and that workload is spread between multiple courts.
Item 29 - Subsection 46(3)
Item 29 would make a consequential amendment to subsection 46(3) to reflect that
both the Federal Circuit Court of Australia, and the Federal Court of Australia, are
relevant courts for the purposes of Part 4 of the Regulatory Powers Act.
Item 30 - After section 46
Item 30 would insert proposed section 46A into the Online Safety Act which extends
the operation of Part 5 of the Regulatory Powers Act to a contravention of proposed
sections 44B, 44G, and 44K. Part 5 of the Regulatory Powers Act creates a
framework for using infringement notices in relation to the listed provisions.
The proposed section would provide that a member of the staff of the Australian
Communications and Media Authority (ACMA), who is authorised in writing by the
Commissioner, is an infringement officer. Under the Regulatory Powers Act, an
39
infringement officer may give a person an infringement notice if the officer believes
on reasonable grounds that the person has contravened an infringement notice
provision. The Regulatory Powers Act also sets out what information must be
included in the infringement notice.
In these circumstances, the amount of the infringement notice for a single
contravention for an individual would be 12 penalty units ($2,520) and for a body
corporate, 60 penalty units ($12,600).
The proposed section provides that the relevant chief executive officer is the
Commissioner. Under Part 5 of the Regulatory Powers Act, the relevant chief
executive officer is, among other things, able to extend time for payment of an
infringement notice, and withdraw an infringement notice.
The relevant chief executive officer may, in writing, delegate any or all of his or her
powers and functions under Part 5 of the Regulatory Powers Act to a person who is a
member of the staff of the ACMA, and is an SES employee or an acting SES
employee. It is considered that SES officers are an appropriate level to which these
powers can be delegated, as the seniority of these officers reflects the significant
nature of these powers.
It is noted that there is no provision permitting a delegate to sub-delegate the power,
and, accordingly, the standard position in paragraph 34AB(1)(b) of the Acts
Interpretation Act 1901 applies. That is, a delegate cannot sub-delegate a power or
function, unless there is a contrary intention evinced in the legislation.
A delegate must comply with any directions of the relevant chief executive. This
reflects that the power being exercised is that of the relevant chief executive, and
delegates should exercise the relevant chief executive's powers in accordance with
any directions.
The provision makes it clear that Part 5 of the Regulatory Powers Act extends to
every external Territory of Australia, and to acts, omissions, matters and things
outside of Australia.
Item 31 - Subsection 47(1)
Item 31 would amend subsection 47(1) to make it clear that proposed sections 44B,
44G, and 44K are enforceable under Part 6 of the Regulatory Powers Act. Part 6 of
the Regulatory Powers Act creates a framework for accepting enforceable
undertakings in relation to a contravention of the listed provisions.
The effect of this amendment is that the Commissioner would be able to accept an
enforceable undertaking in relation to complying with the prohibition on the non-
consensual sharing of an intimate image, a remedial direction from the Commissioner,
or a removal notice issued by the Commissioner. The Commissioner can apply to a
relevant court to enforce that undertaking, and the court has powers to make various
orders including: directing the person to comply with the undertaking; directing the
person to pay compensation to another person for loss or damage suffered; and any
other order that the court considers appropriate.
40
Being able to accept, and enforce, undertakings in a court, is another enforcement
mechanism the Commissioner can use, in appropriate circumstances. For example,
there have been several contraventions of the requirement to comply with a removal
notice within the specified timeframe, the Commissioner could accept an undertaking
in the future that the person or provider would comply with any removal notice within
the required timeframe.
Item 32 - Subsection 47(2)
Item 32 would make consequential amendments to subsection 47(2), reflecting that
proposed sections 44B, 44G, and 44K would be enforceable under Part 6 of the
Regulatory Powers Act.
Item 33 - Subsection 47(3)
Item 33 would amend current subsection 47(3) to extend jurisdiction to the Federal
Court of Australia, in relation to enforcing an enforceable undertaking.
The effect of this is that both the Federal Circuit Court of Australia, and the Federal
Court of Australia will be relevant courts for the purposes of Part 6 of the Regulatory
Powers Act. This means that the Commissioner can seek to enforce an enforceable
undertaking in either of these courts, ensuring that matters can be heard at the lowest
level appropriate and that workload is spread between multiple courts.
Item 34 - Subsection 47(3)
Item 31 would make a consequential amendment to subsection 47(3) to reflect that
both the Federal Circuit Court of Australia, and the Federal Court of Australia, are
relevant courts for the purposes of Part 6 of the Regulatory Powers Act.
Item 35 - Subsections 47(3) and (4)
Item 35 would make consequential amendments to subsections 47(3) and 47(4),
reflecting that proposed sections 44B, 44G, and 44K would be enforceable under Part
6 of the Regulatory Powers Act.
Item 36 - At the end of subsection 48(1)
Item 36 would amend subsection 48(1) to make it clear that proposed sections 44B,
44G, and 44K are enforceable under Part 7 of the Regulatory Powers Act, which
creates a framework for the seeking of injunctions in relation to a contravention of the
listed provisions.
The effect of this amendment is that the Commissioner would be able to seek an
injunction in relation to complying with the prohibition on the non-consensual sharing
of an intimate image, a remedial direction from the Commissioner, or a removal
notice issued by the Commissioner. For example, if a person is threatening to post an
intimate image, the Commissioner may seek an injunction from the Court requiring
the person to refrain from posting the image.
41
Item 37 - Subsection 48(3)
Item 37 would amend current subsection 48(3) to extend jurisdiction to the Federal
Court of Australia, in relation to seeking an injunction.
The effect of this is that both the Federal Circuit Court of Australia, and the Federal
Court of Australia will be relevant courts for the purposes of Part 7 of the Regulatory
Powers Act. This means that the Commissioner can seek an injunction in either of
these courts, ensuring that matters can be heard at the lowest level appropriate and
that workload is spread between multiple courts.
Item 38 - Subsection 48(3)
Item 38 would make a consequential amendment to subsection 48(3) to reflect that
both the Federal Circuit Court of Australia, and the Federal Court of Australia, are
relevant courts for the purposes of Part 7 of the Regulatory Powers Act.
Item 39 - At the end of section 88
Item 39 would amend section 88 to provide that the Administrative Appeals Tribunal
has jurisdiction to review, on the merits, a decision of the Commissioner to give a
removal notice under proposed sections 44D, 44E or 44F, or a decision of the
Commissioner to give a remedial direction under section 44K.
The effect of this is that a person can seek merits review at the Administrative
Appeals Tribunal of either of these decisions. In relation to administrative decisions, it
is good policy to provide the opportunity for independent review on the merits in
relation to decisions that affect the rights and interests of individuals, and these
amendments achieve this.
Item 40 - At the end of subsection 89(1)
Item 40 would make an amendment to section 89 to make it clear that civil
proceedings do not lie against a person in respect of loss, damage or injury suffered
by a person, in relation to the following acts done in good faith:
A complaint made to the Commissioner under proposed section 19A.
An objection notice given to the Commissioner under proposed section 19B.
Information given to the Commissioner in connection with an investigation
into a complaint under section 19C.
Information given to the Commissioner in connection with the consideration
of an objection notice under section 19D.
The effect of this amendment is that civil proceedings cannot be instituted against a
person for the making of a complaint that an intimate image has been shared without
consent, or for lodging of an objection notice in relation to an intimate image, if those
actions were done in good faith. Civil proceedings also cannot be instituted against a
person for co-operation with the Commissioner in relation to an investigation of a
complaint, or a consideration of an objection notice, if those actions were done in
good faith.
42
Item 41 - At the end of subsection 89(2)
Item 41 would amend section 89 to make it clear that civil proceedings do not lie
against a person in respect of anything done by the person in compliance with a
removal notice. That is, if a person has been issued with a removal notice, another
person cannot institute civil proceedings against the first person for steps undertaken
to comply with that notice.
Item 42 - Paragraph 92(1)(a)
Item 42 would amend paragraph 92(1)(a) to insert a reference to designated internet
service in that provision. The effect of this amendment is that if the Commissioner
becomes aware of particular material provided on a designated internet service, and is
satisfied the material is of a sufficiently serious nature to warrant referral to a law
enforcement agency, the Commissioner may notify the material to specified law
enforcement bodies.
Item 43 - Paragraph 93(a)
Item 43 would amend paragraph 93(a) to insert a reference to designated internet
service in that provision. The effect of this amendment is that the Commissioner may
defer taking action in relation to material provided on a designated internet service in
circumstances where a member of an Australian police force satisfies the
Commissioner that the taking of action by the Commissioner should be deferred until
the end of a particular period in order to avoid prejudicing a criminal investigation.
Item 44 - At the end of subsection 94(1)
Item 44 would amend section 94 to make it clear that the Commissioner may make
one or more copies of material for the purposes of an investigation under proposed
section 19C, a complaint that there has been a non-consensual sharing of an intimate
image, or, for the purposes of proposed section 19D, consideration as to whether to
issue a removal notice in response to an objection notice given to the Commissioner.
Item 45 - Section 105 (heading)
Item 45 would amend the heading for section 105 to be 'Provider of social media
service, relevant electronic service, or designated internet service'. This reflects that
this provision relates to providers of social media services, relevant electronic
services, or designated internet services.
Item 46 - Subsections 105(1) and (2)
Item 46 would amend subsections 105(1) and (2) to insert a reference to designated
internet service.
The effect of this amendment is that a person will not be a provider of a designated
internet service merely because the person supplies a carriage service that enables
material to be accessed or delivered on that service. The amendment will also make it
clear that a person does not provide a designated internet service if they merely
provide a billing service, or a fee collection service, in relation to the designated
internet service.
43
This amendment is required because the prohibition on the non-consensual sharing of
intimate images also extends to the sharing of an intimate image on a designated
internet service.
i
Dr Nicola Henry, Dr Anastasia Powell and Dr Asher Flynn, Submission No 13 to the NSW Standing
Committee on Law and Justice to the Inquiry into Remedies for the Serious Invasion of Privacy in New
South Wales, September 2015, available:
https://www.parliament.nsw.gov.au/committees/DBAssets/InquirySubmission/Body/49194/0013%20D
r%20Nicola%20Henry,%20Dr%20Anastasia%20Powell%20and%20Dr%20Asher%20Flynn.pdf
44