A private member’s bill introduced into the House of Representatives by federal Labor MP Tim Watts seeks to explicitly criminalise the non-consensual sharing of intimate images, often dubbed ‘revenge porn’.
The proposed legislation — Criminal Code Amendment (Private Sexual Material) Bill 2016 — would make it a crime to transmit, make available, publish, distribute, advertise or promote “private sexual material” without the consent of the subject of the material (if the person “knows of, or is reckless as to, the subject’s lack of consent”).
The bill would also make it an offence to blackmail an individual by threatening to make such material available.
Either offence would be punishable by a prison sentence of up to three years.
A third offence covers producing, supplying or obtaining private sexual material for commercial purposes or for the purposes of obtaining some kind of benefit, with a possible prison sentence of five years.
“The proposed offence covers a broad range of preparatory conduct undertaken with the intention to commit the primary offences,” the bill’s explanatory memorandum states of the third category of offence.
“For example, the offence would apply to the possession of private sexual material, provided the person with possession intended that the private sexual material be made available on the Internet without the consent of the subject, and where there is a risk that this would cause distress or harm to the subject, and the person intended to obtain a benefit.”
“The offence would also apply to the actual production of private sexual material, if persons involved in the production intended to place the material on the Internet without the consent of the subject, and where there is a risk that this would cause distress or harm to the subject, and the person intended to obtain a benefit,” the memorandum adds.
The bill would allow a number of defences, including for media outlets if the material relates to news reporting or commentary in the public interest and for developers working on content filtering technology.
During a Senate Estimates hearing today Attorney-General George Brandis said the issue of a specific ‘revenge porn’ offence was “primarily a matter for the states and territories” but added that there “should be a nationally consistent response”.
The attorney-general said that although there is not a specific Commonwealth offence relating to the non-consensual sharing of intimate material, it is an offence to use a carriage service to “to menace, harass or cause offence”.
The final report of the COAG Advisory Panel on Reducing Violence against Women and their Children, released in April, recommended: “All Commonwealth, state and territory governments should introduce legislation that reinforces perpetrator accountability by removing uncertainty and explicitly making it illegal to use technology to distribute intimate material without consent”
Victoria has a specific law targeting ‘revenge porn’ and South Australia “has broader legislation that makes it a criminal offence to distribute an ‘invasive’ image without consent,” the COAG report noted.
“At the Commonwealth level, broader telecommunications offences can, and have, been used in relation to using a ‘carriage service to menace, harass or cause offence’”.
The NSW government has said it will introduce a law targeting the issue.
Earlier this year a federal parliamentary inquiry examined ‘revenge porn’.