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‘Revenge Porn’ and Image-Based Abuse: Protections, barriers, and avenues for victims

The advent of technology and social media has brought about immense advancements in communication and accessibility to information. However, as people spend more of their time online, instances of malicious behaviour and flagrant misuse of the medium have arisen in concerning proportions. Namely, the advent of image-based abuse has become rampant amongst teenagers and young adults, causing significant mental health ramifications amongst the most vulnerable.

Colloquially referred to as ‘revenge porn’, image-based abuse is the act of sharing or threatening to share naked or sexually explicit pictures or video without the depicted person’s consent, as well as taking explicit images or videos of people without their knowledge. Although the colloquial term is most used in discourse surrounding cyber safety, the term ‘image-based abuse’ is preferable as it captures the array of perpetrator motivations, behaviours, and subsequent harm to the victim regardless of whether or not the perpetrator intended to distribute the image for the purposes of ‘revenge’. Indeed, by virtue of the act itself, image-based abuse is often marked by a desire to humiliate, expose, and damage the reputation and relationships of the victim.

Accordingly, the impact on the victim’s livelihood can be extreme, with many reporting feelings of sexual violation and consequently receiving unsolicited sexual contact from strangers. This was reflected in a study conducted by the Australian e-safety commissioner, which found that 40% of victims reported negative effects to their self-esteem and mental health, while 55% reported humiliation and fear for their safety.  Image based abused is also heavily intertwined with domestic violence, as victims can be threatened with their intimate photographs being released as a form of blackmail or part of a cycle of domestic abuse.

Legislative Protection

In Australia, a patchwork of civil and criminal laws exist in relation to image-based sexual abuse cases. At the federal level, telecommunications legislation applies under the federal Criminal Code Act 1995 (Cth), which makes it a criminal offence to use a carriage service to menace, harass or offend another person. The Enhancing Online Safety (Non-Consensual Sharing of Intimate Images) Act 2018 (Cth) prohibits the posting of, or threatening to post, an intimate image without consent on a social media service, relevant electronic service or a designated internet service. The Act also establishes a complaints and objections system to be administered by the e-Safety Commissioner, and provides the commissioner with powers to issue removal notices or remedial directions.

According to the government, the legislation complements the e-Safety Office’s online complaints portal pilot, and vests in the commissioner the power to “combat image-based abuse, including revenge porn, by issuing ‘removal notices’ to websites, content hosts, and social media providers”.

At the state level, legislation has been introduced to criminalise this behaviour in every state and territory besides Tasmania.  The Victorian Parliament passed the Crimes Amendment (Sexual Offences and Other Matters) Bill 2014 on 15 October 2014, which amended the Summary Offences Act 1966 (Vic), and the Crimes Act 1958 (Vic). This legislation creates the new offences of distribution of an intimate image, for which offenders may face up to two years imprisonment.

Barriers to Protection

Despite these legislative mechanisms existing to protect victims of image-based abuse, the reactive nature of the law prevents the core issues in this area from being eradicated. Indeed, an obstacle exists to victims who may not be aware that the law exists, and may be reluctant to file a report with the Police. Indeed, there is often blame and stigmatisation associated with images of this kind, which may be particularly pertinent for victims of particular age groups of cultural backgrounds. For this reason, there is a need for preventative measures to address the key causes of image-based abuse, involving a cultural adjustment towards removing the sense of shame or fear surrounding images of this nature, and appropriate cyber safety education.

Legal recourse may also be inaccessible for victims to pursue civil remedies, as these may not be appropriate for the perpetrator’s crime. In the absence of criminal laws in some states, civil recourse may be the only option which can often be costly for victims of particular age groups or socio-economic backgrounds.

Avenues for victims

The Australian e-Safety Commissioner’s role is to promote online safety for all Australians. It has a broad remit which includes providing a complaints service for young Australians who experience serious cyberbullying; identifying and removing illegal online content; and tackling image-based abuse. The e-Safety Commissioner is an independent office that sits under the Australian Communications and Media Authority (ACMA).

Victims can get in touch with the e-safety Commissioner, which is responsible with accepting and dealing with complaints, through the online portal to provide direct support and recommendations. Reports of image-based abuse can be made via the following link: https://www.esafety.gov.au/report/image-based-abuse

Members of the public are also able to access to gain information on laws, e-safety tips, and recommendations on maintaining cyber safety via the e-safety commissioner website: https://www.esafety.gov.au/

The e-Safety Commissioner recommends victims across Australia of image-based abuse take the following steps in order to get the images taken down off the Internet, and to seek further action if necessary.

  • Collect evidence, including taking screenshots and copy and URL
  • Check if the image has been posted in other places. You can do this by searching for your name online and do a reverse image search
  • Contact the social media platform or website administrator directly and report that the image was distributed without consent
  • Report it to the e-Safety Commissioner by the following link: https://www.esafety.gov.au/report/image-based-abuse
  • If you are in Victoria or South Australia, contact your local police
  • Microsoft and Google both offer options to remove revenge porn from appearing on their various search engine results and other services. 

The e-Safety commissioner also has the authority to force social media companies that operate in Australia, including Twitter and Facebook, to remove content deemed to be online bullying, or face fines of AU$17,000 per day.

Facebook, YouTube and other social media sites have developed sophisticated algorithms that can help detect images shared non-consensually and flag them with moderators. For several years Facebook has piloted a program where victims, through the office of the e-safety commissioner, can submit photographs to Facebook they believe have or could be shared. A digital fingerprint of the photo is made, which notionally prevents anyone from posting it again across Facebook, Messenger or Instagram.

For further information and support in this area, please refer to the following websites:

By Nicholes Family Lawyers

 

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