Is It Legal To Post 'Revenge Porn' In Australia?

Revenge porn laws in AustraliaImage: iStock

“Revenge porn”. It’s when a partner or ex-partner posts nude or intimate pictures or videos online to cause humiliation, intimidation or embarrassment. Australia has strict laws prohibiting the creation of pornographic material without the participant's knowledge or consent - but what if they knew they were being recorded? As it turns out, in the absence of better laws, perpetrators are largely getting away with it.

The media and public responses to the issue have been slowly shifting. Where once it was common to blame and shame victims for taking nude or sexy pictures in the first place, now there are calls to hold the perpetrators of these sexual violations responsible for their actions.

The harm to victims

Victims describe feeling sexually violated when they discover their images have been posted online. In fact, like other forms of sexual violence, emerging evidence suggests that it is most often women and girls who experience this kind of victimisation. And, like our attitudes to sexual violence generally, too often we have blamed and shamed the victim while ignoring or minimising the actions of the perpetrator.

In fact, according to our research, intimate images are also being used in domestic violence and sexual assault situations to blackmail victims, or to discourage them from seeking help from the police. It’s not just “revenge” towards an ex-lover that motivates perpetrators of these harms. In many cases, it is part of a pattern of abuse against women.

Like sexual and domestic violence more generally, the harms to victims when their images have been shared or posted online is also not a one-off event. Victims describe it as an ongoing violation as the images are often difficult to remove and may have been re-shared many hundreds or thousands of times.

What the law says

Countries such as the United States, Canada, New Zealand and the United Kingdom are all scrambling to draft new laws to better respond to the harms of revenge porn. Soon, sharing or publishing intimate images without consent will be a criminal offence in the UK with offenders facing up to two years in jail.

Australia’s current laws were not designed to deal with the harm caused by these kinds of publication and sharing of intimate images by everyday individuals. Australia’s privacy laws, for example, are designed to protect us from companies and government departments, not a trusted partner, ex-partner or friend.

Australia’s state and territory criminal laws cover physical and sexual assaults as well as repeated stalking behaviours, but not the one-off act of posting someone’s intimate images. Australia is lacking laws that recognise and respond to the sexually based violation and the ongoing harm that sharing intimate images without consent causes to victims.

Australia also has a federal law against “using a carriage service to menace, harass or cause offence” (section 474.17). Yet, much like similar laws in the UK, this law is rarely used in revenge porn cases, and there are calls for a specific offence that more accurately reflects the harm caused when a person’s intimate images are misused.

In Victoria, for example, a draft bill creates two new offences that will make it a crime to distribute, or threaten to distribute, intimate images without consent. The Australian Law Reform Commission has also recommended that the Federal Government create new individual digital privacy protections.

Australians urgently need such laws to provide greater legal clarity and better protection for victims of revenge porn across all states and territories.

What we can do

We need to stop shaming and blaming victims, and start shaming and holding responsible those who post these images online in the first place. This means not only actions by governments to provide consistent legal responses, but also industry and service providers responding quickly to take-down requests and cooperating with police investigations.

Our public institutions such as schools, workplaces and universities can also be proactive by including these behaviours in sexual harassment policies and taking complaints seriously.

Individuals too can play a role. If someone shows you or sends you intimate images of another person, call them out on it. Tell them that you don’t think it is okay to disrespect a person by sharing their images without permission.

If a partner or ex-partner has threatened, or has shared, your intimate images to others you can seek legal advice or report it to police. Confide in a trusted family member or friend. By speaking out we can continue to raise awareness of the seriousness of this issue and maybe encourage other victims to seek assistance.


If you or someone you know is impacted by sexual assault or family violence, call 1800RESPECT on 1800 737 732 or visit www.1800RESPECT.org.au. In an emergency, call 000.

Anastasia Powell, Lecturer, Justice and Legal Studies, RMIT University and Nicola Henry, Senior Lecturer in Legal Studies, La Trobe University

This article was originally published on The Conversation.


Comments

    I posted this over at Giz:

    Section 474.17 of the Criminal Code Act 1995 (Cwth) already makes "using a carriage service to menace, harass or cause offence" illegal.
    Read more at https://www.gizmodo.com.au/2017/05/one-in-five-australians-have-been-victims-of-revenge-porn/#comment-3878964#kKOrP0HQuj6lIL7s.99

    Someone explain to me how that doesn't cover revenge porn?

      Posting revenge porn to a site (or sharing with others) without actually telling the person who's pics you are sharing wouldn't be covered there. There is also probably a grey area on what 'offence' means, if you are trying to embarrass somebody are you trying to cause offence.

        Admittedly detection by the victim would need to happen under existing legislation...but it would need to happen under any new legislation as well. Until the victim comes forward and says "I didn't consent to that" the assumption is it was taken and shared consensually. Im actually ok with that because otherwise it's a "guilty until proven innocent" situation.

        While having explicit images shared without consent would be offensive, even with those moving goalposts on the basis of different people being offended differently in different ways by different things, I think it's hard to argue that perpetrating revenge porn doesn't constitute harrassment in all circumstances. Fortunately that is also covered by the legislation that already exists.

        Let's enforce the laws we currently have, and provide the Police at all levels with the resources they need to investigate these incidents properly.

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