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Revenge on image-based abuse: Will schools be caught in the crossfire?

14/06/17
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One month on from Privacy Awareness Week (PAW), information privacy and technology-facilitated issues remain an ongoing community concern. While image-based abuse – or ‘revenge p*rn’ in media parlance – may not appear to impact on the activities of schools, the issue has been a live one for both the government and non-government systems.  In late 2016 it was revealed that a chat forum had enabled users to swap graphic explicit images of Australian schoolgirls, impacting students from 70 schools nationwide. Thus any initiatives in response will have a particular impact upon young adolescents and their schools around the country.

Defining the Issue

Image-based abuse rarely falls below the public radar, with stories of celebrity cloud image hackings and leaked ‘sex tapes’ occurring at appallingly regular intervals.

Image-based abuse covers a broad range of:

  • Conduct – an image may have initially been taken with consent and then shared without permission or the image may be taken covertly or doctored to falsely portray an individual.
  • Relationships – while the parties may be unknown to each other, the distribution may also occur in the context of domestic and family violence.
  • Motivations – the abuse can be a form of blackmail, coercion, harassment or to humiliate or traumatise an individual.
  • Distribution methods – distribution can occur on both a macro or micro scale, including sharing to specified individuals, uploading to social media or p*rn websites or public display.

With surveys revealing 1 in 5 Australians has fallen victim to image-based abuse, and figures suggesting that 80-90% of all victims are women, there are clear drivers for establishing a legal regime to address the issue

The Federal Context

While the Criminal Code Act 1995 (Cth) contains offences for the misuse of telecommunications services to menace, harass or cause offence, non‑consensual sharing of intimate images is not specifically criminalised.

With this legal gap in mind, the May meeting of the COAG Law, Crime and Community Safety Council developed the National Statement of Principles Relating to the Criminalisation of the Non-Consensual Sharing of Intimate Images (the Principles). These are intended as a set of best-practice principles to be considered by each jurisdiction as they review and develop their internal criminal law regimes.

The Principles are categorised around the following core areas:

  • General principles. These include that the non-consensual distribution of intimate images is unacceptable and breaches standards of acceptable behaviour.
  • Scope of criminal offences. These include that any criminal offence framework should not capture conduct that does not warrant criminal sanctions, such as the sharing between consenting adults.
  • Consent and harm. These include that offences should not require proof that harm has been caused to the person depicted by sharing the image.
  • Investigative powers. These include that consideration should be given to dealing with the mostly-online nature of the issue and its prevalence across borders.
  • Penalties. These include that penalties should be proportionate to the seriousness of the criminal conduct.

The Federal Government has indicated that its priority is to create strong and consistent regulation at the national level in order to defend against image-based abuse and has proposed a civil penalties regime which would prohibit sharing intimate images without consent. However, the limited criminal jurisdiction at the Federal level likely means that ultimate responsibility for criminalising image-based abuse lies with the states and territories.

The State/Territory Context

The extent of the law around the criminalisation of image-based abuse ultimately comes down to the jurisdiction in which you live.

Out with the old…

Victoria criminalised the malicious distribution of intimate images without consent in August 2014 and, in October 2016, South Australia broadened its offences relating to distribution of an invasive image.

While these two jurisdictions share clear similarities – both cover threats of distribution, and require that the conduct deviates from acceptable standards, the extent of criminalisation differs. For example, in South Australia, an ‘invasive image’ does not cover depictions of private acts in a public place; this exception is not stipulated in Victoria.

Western Australia will join these states from July 1 when amendments to family violence laws come into effect. Under changes to the Restraining Orders Act 1997 (WA), restraining orders may be imposed to prevent a perpetrator from distributing or publishing intimate images of another person. But what constitutes an ‘intimate image’ remains undefined and there is no specific prohibition beyond the impact of breaching a restraining order.

Other jurisdictions continue to rely on old legislative provisions which were created before image-based abuse became a particular issue.

…and in with the new

The Principles have already spurred action at the state/territory level to amend criminal laws to cover image-based abuse.

Two days after the Principles were released, the Crimes Amendment (Intimate Images) Bill 2017 (NSW) was first publicised; introduced into the NSW Parliament’s Legislative Assembly on 24 May. Under the proposed amendments, it will become an offence to intentionally record or distribute (or to threaten to record or distribute) an intimate image without consent.

While the proposed offence bears similarities to the South Australian and Victorian offences, some notable differences include:

  • an expansive definition of ‘intimate image’ which includes images which have been altered to appear to show a person’s private parts or a person engaged in a private act;
  • extending the relevant factors to acceptable standards of conduct to include the relationship between the accused and the person depicted; and
  • a section explaining the meaning of consent, including the qualification that consent to recording/distribution of an image on a particular occasion is not, by reason only of that fact, consent to the recording/distribution on another occasion.

In the ACT, two different amendments are publicly available which respond to the Principles. One was presented to the Legislative Assembly on 7 June and is very similar to the NSW amendment. The other, released as an exposure draft on 2 June. proposes much broader offences relating to privacy breaches. The Crimes (Invasion of Privacy) Amendment Bill 2017 is distinct from other current and proposed laws in two key areas.

First, it proposes to clarify the definition of consent, which usually only apply to persons above the age of consent (which is 16 years in the ACT). Under the proposals, consent of a young person (between 10 and 16 years old) to an intimate act by another young person is not presumed to be negated only because of the age of the young person giving consent.

Secondly, the definition of intimate content is expanded to include depictions of an area of the person’s body that, in the person’s circumstances, is private in nature. In the context of changing in the change room of a gymnasium, this is proposed to include parts of a person’s body that are usually clothed about which they may feel particularly self-conscious because of their age, weight, or a previous injury or medical procedure. This would have clear implications in the school context, particularly in respect of child protection obligations.

The implications for schools

Schools should ensure they are across the development of the Principles. They should also stay updated on the legislative activity in NSW and the ACT, regardless of their location, as similar amendments may soon be proposed nationwide

In anticipation of new and expanded offences for image-based abuse, schools should ensure that their guidelines around appropriate use of technology, as well as sexual harassment and anti-bullying policies clearly communicate that image-based abuse will not be tolerated in any form. They should also have procedures in place to manage complaints or grievances which involve allegations of non-consensual distribution of intimate images.

As discussed previously on School Governance, schools in their capacity as educators also have a role to play in assisting students to properly navigate social media and the online environment, in particular issues associated with image-based abuse and ‘sexting’. The legal changes discussed in this article, in particular the proposals in NSW and the ACT, make education a clear priority.

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About the Author

Kieran Seed

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