Enhancing Online Safety (Non-consensual Sharing of Intimate Images)

August 16, 2018

Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2018

When I was young, there were some technologically-driven constraints on photographs you took. You knew that not only would the person who processed your film see the images but so would your pharmacist, including the sales assistant who opened your photos, flicked through them in front of you, and anyone else who was there, and asked you to check they were yours. To copy and share an image involved a laborious process of getting a copy made from a negative, also involving many people seeing it, and then a good old-fashioned envelope and postage stamp.

My point is the likelihood of people feeling comfortable enough to take intimate images, even with consent, was significantly lower than it is today, and sharing those images was much, much harder.

Of course, Polaroid changed this. When you could take a photo and see it develop right before your eyes, and your eyes alone, there was a bit more leeway, but the ability to share that image was still limited. It might be discovered by eyes you'd rather not have see it in your sock drawer, but it still wasn't possible for someone to give it wide distribution. However, we all know the digital world has torn away all those constraints.

Most of us have a camera by our side almost 24 hours a day, which is why I'm so pleased to be able to support a bill in this House that takes strong action, including criminalisation, against image based abuse online.

I want to raise the point that this is not an issue restricted to what is colloquially known as 'revenge porn'. There are a variety of ways that breaches of privacy occur. It's not just kids. It's not only love affairs gone wrong. What this bill addresses is times when there is a breach of trust, a breach of privacy.

This is not the fault of the people who have their images shared, and we have to remember that. We must never make the victims that feel they are to blame for someone else manifestly exploiting their privacy.

Labor supports the government's amendment to this bill, including the criminal penalties, because this is a view we've held for a very long time, including in the lead-up to the last federal election.

We promised that, within the first 100 days of being elected, we would act, because we felt a sense of urgency. This sense of urgency was shared by Australians, who appreciate the profound impact that non-consensual sharing of images has on someone.

Four out of five Australians agree that it should be a crime to share sexual or nude images without permission, according to RMIT research. When the government failed to act, we reintroduced a private member's bill in October 2016, but the government refused to call it on for debate for eight consecutive sitting Mondays, so it lapsed. It is a shame that so much time has been wasted by this government in insisting that there was no need for a specific criminal offence for image based abuse. But I guess late is better than never.

I want to pay tribute to the people who have worked so hard to make progress on this issue, both within this House and outside, over many years, including people who have been victims of non-consensual sharing of images. I want to speak about the human toll it takes, as people have shared their stories with me.

One young man told me of his pain from an incident several years earlier of having an ex-boyfriend share images. They were teenagers, and he hadn't yet come out to his family. It was through seeing images that his younger brother found out that he was gay. It wasn't just the emotional impact of having nude images shared; it was the total loss of control over his own self-determination that was a consequence for this young man. It was, as is so often the case, an abuse of power.

When we discussed what would be needed as a deterrent and how strong penalties would need to be to prevent the sharing of images happening in the first place, he agreed that it needed to be a crime for people to share sexual or nude images without permission.

I am pleased that this parliament has reached that point.

As I've spoken about this issue with young people, I've been saddened by the ease with which angry, vengeful former lovers or friends can harm someone's reputation, their employment, their social relationships, their family and even their personal safety with a single image.

Let's be clear on what we mean by non-consensual sharing of intimate images. That's sharing or distributing by any social media service, electronic service or designated internet service an image or a video of somebody portrayed in a sexual or otherwise intimate manner without consent.

The content might or might not have been obtained with the consent of the person who is in it. It isn't always revenge porn, but it is always intended to cause harm, distress, humiliation and embarrassment, even when it's just a threat to share that image.

It can be an attempt to control, blackmail, coerce or punish a victim. But other motives exist: fun, social notoriety or financial gain. Whatever the reason, it is right that there should be severe penalties and that it should be a crime.

RMIT and Monash researchers last year surveyed more than 4,000 Australians aged 16 to 45 and found that nearly a quarter of them reported having been victims of image based abuse.

The most common forms were sexual or nude images taken of them without their consent; 20 per cent had experienced that. Eleven per cent said the images had been sent to others or distributed without their consent. Nine per cent had experienced threats that the images would be shared.

Interestingly, the survey found that victims reported high levels of psychological distress—that is not surprising—but the impacts were highest for those who had experienced threats to distribute an image. Eighty per cent of these people reported high levels of psychological distress consistent with a diagnosis of moderate to severe depression or anxiety disorder. This demonstrates the severity of the harm associated with image based abuse victimisation.

One of the advocates for strong action on this matter is a woman whose privacy was invaded during a gynaecological procedure in 2014.

Brieana Rose, as she has chosen to be called in her advocacy role, woke in a hospital recovery suite and saw a nurse showing another nurse something on a mobile phone. Brieana's only thought was that it was strange to see a mobile phone in the recovery room. She didn't really give it much more thought than that.

Weeks later, her surgeon rang to say that, while she had been sedated and in stirrups, a nurse had taken an explicit photo of her genitals. The nurse had shared the image with her colleagues, and two nurses had reported her to hospital executives. The nurse was dismissed immediately, but no other action could be taken.

Brieana lives in my electorate. She's a mum and a daughter, like me. Brieana's journey for justice to ensure appropriate action can be taken against people who do this, to ensure that the photo is not going to turn up on the internet and to protect her privacy after this shocking invasion has led her to campaign vehemently for changes so that 21st-century laws match 21st-century technology.

There was no legal recourse for her, and that's why this legislation is so important. I think this example also shows that a shocking breach of privacy can happen to just about any of us.

I repeat: victims are not the cause of this issue.

I want to pay tribute to Brieana, who I know personally. She has faced enormous personal pain and consequences from what was done to her, yet her driving force has been to make sure other people, including other women, don't find themselves in a similar place, without recourse.

This is why the change to the bill—the latest backflip by the government, and the best one we've seen by far—to have criminal, not just civil, consequences is so significant.

This behaviour requires a punishment. That brings me to the options for redress.

Labor supports victims having a range of options. Not all victims of image based abuse will want to go down the path of criminal proceedings. Some may prefer to work with the eSafety Commissioner under the civil regime. Some may want to go direct to the service provider.

We know that the more prominent social media service providers and content hosts are working to develop innovative technological measures, or already have some things in place, designed to assist victims whose images have been shared without consent. I'd encourage those social media providers to continue this work and note that the bill will not prevent victims from approaching these services in the first place rather than the Office of the eSafety Commissioner.

The mechanism for people to do whatever they choose to do, particularly keeping in mind the distress that they will be experiencing when they do it, needs to be easy. I think it's vital that, with a strong legal framework in place, there continues to be a commitment by all parties to see a swift response to this abhorrent behaviour.