(Sept. 21, 2018) On September 1, 2018, the Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Act 2018 (Cth) came into force in Australia. (Enhancing Online Safety (Non-consensual Sharing of Intimate Images Act 2018 (Cth) s 2, Federal Register of Legislation website.) The Act amends the Enhancing Online Safety Act 2015 (Cth) and the Criminal Code Act 1995 (Cth) to introduce civil penalties and new criminal offenses that can be applied to those who post, or threaten to post, intimate images of others online without their consent. (Press Release, Office of the eSafety Commissioner, Tougher Laws to Combat Image-Based Abuse (Sept. 6, 2018); Press Release, Department of Communications and the Arts, Stronger Laws to Stop Image-Based Abuse (Sept. 6, 2018).)
Civil Enforcement and Penalties
As a result of the amendments, the Office of the eSafety Commissioner has “a range of enforcement options to require rapid removal of image-based abuse material and to hold perpetrators to account.” (Press Release, Office of the eSafety Commissioner, supra.) Following the receipt of a complaint or an objection notice, it can now issue “removal notices” to individual perpetrators, websites, content hosts, and social media providers, directing them to remove offending content within 48 hours. (Id.) Individuals “may be subject to civil penalties of up to [AU]$105,000 [about US$75,400] and corporations up to [AU]$525,000 [about US$376,900] if they do not comply with a request from the eSafety Commissioner to remove an intimate image.” (Id.) In addition, the Commissioner can give a remedial direction to a person “to take steps to ensure they do not share or threaten to share, an intimate image without consent in the future,” and “may also informally seek removal of an image, accept an enforceable undertaking or seek an injunction from a court.” (Id.)
New Aggravated Criminal Offenses
Changes made to the relevant bill following its introduction establish two new aggravated offenses, where an increased penalty would apply under the Criminal Code Act 1995 (Cth) to the “most serious instances of sharing of intimate images.” (Parliament of Australia, House of Representatives, Enhancing Online Safety (Non-consensual Sharing of Intimate Images Bill 2018, Supplementary Explanatory Memorandum: Amendments Moved on Behalf of the Government 2 (2018).) In particular, such instances include the publication of “private sexual material” (“standard aggravated offence”) and those where the offender has previously been subject to three or more civil penalty orders (“special aggravated offence”). (Id.) The penalty for a “standard aggravated offence” is imprisonment for up to five years, while a “special aggravated offence” is punishable by imprisonment for up to seven years. (Enhancing Online Safety (Non-consensual Sharing of Intimate Images Act 2018 (Cth) sch 2, cl 4.)
The eSafety Commissioner was established by the Enhancing Online Safety Act 2015 (Cth). The functions of the Commissioner now include:
(a) promoting online safety for Australians; and
(b) administering a complaints system for cyber‑bullying material targeted at an Australian child; and
(ba) administering a complaints and objections system for non‑consensual sharing of intimate images; and
(c) coordinating activities of Commonwealth Departments, authorities and agencies relating to online safety for children; and
(d) administering the online content scheme under the Broadcasting Services Act 1992. (Enhancing Online Safety Act 2015 (Cth) s 13.)
National Principles and State and Territory Legislation
The introduction of the bill in December 2017 and its passage in August 2018 followed the adoption by the Commonwealth (i.e., federal), state, and territory governments, in May 2017, of a list of “national principles to assist the Commonwealth, states and territories to create an effective and consistent criminal framework to combat the non-consensual sharing of intimate images.” (National Statement of Principles Relating to the Criminalisation of the Non-consensual Sharing of Intimate Images, DEPARTMENT OF HOME AFFAIRS (last visited Sept. 17, 2018); Law, Crime and Community Safety Council, National Statement of Principles Relating to the Criminalisation of the Non-consensual Sharing of Intimate Images (last visited Sept. 17, 2018); Enhancing Online Safety (Non-consensual Sharing of Intimate Images Bill 2018, Parliament of Australia website.)
Since agreeing to the principles, several jurisdictions, in addition to the Commonwealth, have introduced legislation targeting the non-consensual sharing of intimate images:
- Australian Capital Territory: Crimes (Intimate Image Abuse) Amendment Bill 2017 (ACT), enacted August 2017.
- New South Wales: Crimes Amendment (Intimate Images) Bill 2017 (NSW), enacted June 2017.
- Northern Territory: Criminal Code Amendment (Intimate Images) Bill 2017 (NT), introduced November 2017.
- Queensland: Criminal Code (Non-consensual Sharing of Intimate Images) Amendment Bill 2018 (Qld), introduced August 2018.
- Western Australia: Criminal Law Amendment (Intimate Images) Bill 2018 (WA), introduced June 2018.