FactCheck Q&A: are there laws to protect against ‘revenge porn’ in Australia?

Anastasia Powell, RMIT University; Asher Flynn, Monash University, and Nicola Henry, La Trobe University

The Conversation fact-checks claims made on Q&A, broadcast Mondays on the ABC at 9:35pm. Thank you to everyone who sent us quotes for checking via Twitter using hashtags #FactCheck and #QandA, on Facebook or by email.

Excerpt from Q&A, March 6, 2017. Quote begins at 3:10.

I thought there were laws to kind of protect [against] revenge porn? There aren’t? – Actor and presenter Faustina Agolley, speaking on Q&A on March 6, 2017.

In the lead-up to International Women’s Day, an all-female panel of guests on ABC TV’s Q&A program discussed issues ranging from sexual assault and domestic violence to “revenge porn”, where a nude or explicit image is shared without consent.

Actor and presenter Faustina Agolley questioned what the law says on this issue, asking: “I thought there were laws to kind of protect [against] revenge porn? There aren’t?”

Let’s check the facts.

Checking the source

The Conversation contacted Agolley seeking to clarify what she meant by her comment. She said by email:

My question “I thought there were laws to kind of protect [against] revenge porn?” was to the audience and presenter Tony Jones. They replied “no” or shook their heads. That’s why I said, “There aren’t?” I was surprised as I thought there was. Coming from Victoria, I must have heard or read this somewhere before (perhaps from one of Clementine Ford’s articles). And I didn’t realise this was specific to the state that I lived in. Therefore, when the audience seemed to debunk my hunch, I believed them.

I hope this helps further the discussion on this issue. As may you know, we’re only briefed on what some of the topics may be. Revenge porn was not one of them, so I couldn’t research in advance.

As it turns out, Agolley was right to be unsure about what the law is on so-called “revenge porn” in Australia – because the answer to her question depends on where you live.

Patchy state laws, and no specific national laws

Revenge porn is a media-generated term referring to the distribution of nude, sexual or sexually explicit images without the depicted person’s consent, often via social media or mobile phone.

Yet the term itself is misleading. Not all perpetrators are motivated by “revenge”, and not all images can be described as “pornography”. The term might also be offensive to victims, as it minimises the harms they experience when an intimate image (photo or video) is created or shared without permission.

This is partly why academics and government agencies are increasingly using the term “image-based abuse”.

There are specific laws in Victoria and South Australia that criminalise the distribution of an intimate or “invasive” image without consent. In both Victoria and South Australia, it is also a criminal offence to threaten to distribute an intimate or invasive image.

But there are no specific federal laws making the non-consensual creation or distribution of a nude or sexual image a criminal offence. There are also gaps in other Australian state and territory laws where no specific criminal offences exist.

In our research with police and legal services, some suggested that federal telecommunications laws such as “using a carriage service to menace, harass or cause offence” (Section 474.17 of the Criminal Code) could be used to respond to image-based abuse. But unless it is clear that a perpetrator intended to cause those impacts to a victim by distributing an intimate image, some of our interviewees thought it was a legal grey area and that clearer laws were needed.

There have been proposals to introduce new federal laws to tackle image-based abuse. To date, the federal government has committed to introducing a civil penalties scheme, which would assist victims in reporting image-based abuse and having the images removed.

Other states have also investigated whether new laws are needed. For example, Western Australia has proposed its own legal reform to tackle image-based abuse by a partner or ex-partner in the context of family violence. The proposed law would allow restraining orders (also known as intervention or protection orders in some jurisdictions) to prevent a perpetrator from distributing or publishing intimate images of another person. A breach of the order would be a criminal offence, attracting up to two years in prison.

In short, there is currently a piecemeal approach to legal protections against image-based abuse (or “revenge pornography”) in Australia.

While criminal and civil laws exist in some states and territories that could be (and have been) used to provide victim redress, there is no national consistency.

In states or territories without specific legislation, many victims simply have no recourse to justice if existing laws do not apply and/or if the victim cannot afford to seek remedies through the civil law, which is often costly and out of the reach of ordinary Australians.

Verdict

Faustina Agolley was right to be unsure on Q&A about what the law is on revenge porn in Australia – because it all depends on where you live. Specific laws against so-called “revenge porn” do exist in two states, Victoria and South Australia. But there is no specific criminal offence at the federal level or in other states and territories. – Anastasia Powell, Nicola Henry, Asher Flynn.

Review

The above analysis is sound. However, I would also add the following points:

• The New South Wales attorney-general, Gabrielle Upton, announced in September last year that the state government will soon seek to criminalise “revenge porn” or “the distribution of intimate or sexually explicit images without consent”. They also proposed a new civil offence for serious invasions of privacy.
• Other criminal laws such as “publishing an indecent article” have also been used to successfully prosecute cases of “revenge porn”.
• Civil doctrines such as breach of confidence and copyright can sometimes provide effective outcomes, such as injunctions prohibiting defendants from further publication and compensation.

I would agree that state laws provide patchy coverage for instances of
“revenge pornography”. There are no specific national laws but other laws have been used to successfully prosecute cases. I think national laws – such as Section 474.17 of the Criminal Code (using a carriage service to menace, harass or cause offence) that have been used to successfully prosecute some instances of “revenge porn” are inadequate and in need of reform. – Jessica Lake.

Anastasia Powell, Senior Research and ARC DECRA Fellow, Justice and Legal Studies, RMIT University; Asher Flynn, Senior Lecturer in Criminology, Monash University, and Nicola Henry, Senior Lecturer in Legal Studies, La Trobe University

This article was originally published on The Conversation. Read the original article.