By Kathryn Klein
The Senate’s Legal and Constitutional Affairs References Committee (“Committee”), in an inquiry into the worldwide phenomenon known as ‘revenge porn’, made recommendations last week that acts of ‘revenge porn’ should be made a crime on Commonwealth and State levels. But ‘revenge porn’ scandals are only for the J-Laws and Kim Kardashians of the world right? Apparently not. The Committee found that a staggering 1 in 10 Australian women have had a nude image distributed without their permission.[1] We’ve previously written about the lacklustre legal avenues for victims of ‘revenge porn’ in Australia, so if the recommendations are followed, will those victims finally have legal recourse?
The Senate takes on ‘revenge porn’, and it has a new name
First thing is first – stop calling it ‘revenge porn’. Since it is often the case that the distribution of a raunchy pic is by a vengeful ex-lover or computer savvy hacker (see the celeb cloud hacking saga in 2014), the Committee found that the term ‘porn’ unduly focuses on the actions of the victim and wrongly categorises their actions (sending or taking an image) as pornography. This in turn implies that the victim has consented to the distribution of the image, which is contradictory to the entire ‘revenge porn’ concept.
The Committee then focused on the term ‘revenge’. The word ‘revenge’ is usually associated with some heroic act of retribution (think of the Kill Bill or First Wives Club movie plots), which is justified in the circumstances. This directs the focus to the victim, and implies the harm caused by the perpetrator was justified. Obviously associating the heroic acts of Uma Thurman and Goldie Hawn with a person sharing intimate images online without consent is not appropriate, which is why the Committee wants to avoid such terminology. Instead, the Committee recommends that ‘revenge porn’ be called the ‘non-consensual sharing of intimate images’.
Keeping things private
With a staggering 3000 pornographic websites functioning solely for revenge purposes,[2] it comes as a relief that the Committee has recommended that Commonwealth, State and Territory Governments legislate against knowingly, or recklessly, recording, sharing or threatening to record or share intimate images without consent.
To give victims another avenue in the horrific event that their nude pics end up online, the Committee recommends that the Commonwealth create a cause of action for serious invasions of privacy. New South Wales is on board with this idea, with the Standing Committee on Law and Justice finding that existing laws do not provide adequate remedies for serious invasions of privacy. It recommended implementing legislation which allows victims to sue for reckless or intentional invasions of privacy by individuals.
The Attorney-General’s Department made submissions that it does not support a tort of privacy, however the Committee was in “no doubt” about the need for the new laws and believes the Commonwealth needs to demonstrate leadership in this regard.
Taking down the perps
Last year, internet platforms such as Reddit and Google announced that any nude photos, videos or digital images of people posted or linked on its site without permission are prohibited. But the Committee doesn’t think the Government can rely solely on the word of those providers to protect victims. To combat this, it found value in establishing a Commonwealth agency which has the power to issue take down notices.
Unfortunately, the internet has no delete button, so even if take down notices are complied with, victims might continue to see their picture pop up on the web. This is an inherent problem with prosecuting for sharing private images online, because it is often shared by many different users, in many different jurisdictions. To tackle this, the Committee found the best measure is for Governments to regularly engage with internet and social media providers to discuss issues revolving around ‘revenge porn’ and how they can deal with it together.
Let’s just talk about it
Although the idea of scorned lovers sharing raunchy images for revenge is not a new one (back then they might’ve handed out Polaroid pictures instead), the ability to distribute those images worldwide in one click is relatively new. We need to ensure people know the risks of taking and sharing intimate photos in a digital age. To do this, the Committee recommends implementing a public education and awareness campaign targeted at adults to warn and advise about the legal and non-legal ramifications of sharing intimate images without consent.
Overall, while it’s not safe just yet to let those raunchy snaps out of your sight, the Committee seems to be properly shifting the negative focus from victims of ‘revenge porn’ and shining the camera lens where it should be – on the offenders!
[1] A. Powell and N. Henry, Digital Harassment and Abuse of Adult Australians: A Summary Report, RMIT University, Melbourne, 2015. See also Dr Nicola Henry, Senior Lecturer, La Trobe University, Committee Hansard, 18 February 2016, p. 30.
[2] The Economist, ‘Misery merchants’, 5 July 2014, available: http://www.economist.com/news/international/21606307-how-should-online-publicationexplicit-images-without-their-subjects-consent-be.
