ACT Greens Discussion Paper

Invasions of Privacy &
Technology-Facilitated Abuse
A proposal to reform the ACT’s criminal law to eliminate technology -facilitated sexual
abuse and the non-consensual sharing of intimate or private sexual images.

Caroline Le Couteur MLA
ACT Greens Member for Murrumbidgee June 2017
Consultation Period: 2 June 2017 to 28 July 2017
Contents
Consultation Arrangements ............................................................................................................3
Foreword .............................................................................................................................................4
Scope of Consultation .......................................................................................................................6
Specific Feedback Questions ..........................................................................................................7
Objectives of proposed changes to the Crimes Act.....................................................................9
Current Context ...............................................................................................................................10
South Australia ................................................................................................................................ 10
Victoria ............................................................................................................................................. 10
New South Wales ............................................................................................................................. 11
Northern Territory ........................................................................................................................... 11
Western Australia ............................................................................................................................ 11
Queensland and Tasmania .............................................................................................................. 12
ACT Law as it stands ......................................................................................................................12
ACT-Specific Incidents ...................................................................................................................13
The ADFA Skype Case - R v Daniel McDonald and Dylan Deblaquire [2013] ATSC 122 ............. 13
The 2016 Schools Pornography Case ............................................................................................... 14
The 2017 Grindr Blackmail Case..................................................................................................... 14
Statistics ............................................................................................................................................15
Cultural & Attitudinal Change .....................................................................................................16
Terminology......................................................................................................................................17
“Revenge Porn” ................................................................................................................................. 17
Intimate ............................................................................................................................................ 18
Sharing ............................................................................................................................................. 18
Technical Details .............................................................................................................................19
Consent ............................................................................................................................................. 19
Intention to cause harm ................................................................................................................... 20
Community Standards ..................................................................................................................... 20
Public Interest Exception ................................................................................................................. 21
Other Exceptions .............................................................................................................................. 21
Civil Causes of Action ...................................................................................................................... 22
Appendix 1: National Principles...................................................................................................23
Appendix 2: Recommendations from the Senate Inquiry .......................................................25
Appendix 3: Further Reading .......................................................................................................26
3

Consultation Arrangements

Caroline Le Couteur MLA, ACT Greens Member for Murrumbidgee, invites your feedback and
submissions on the proposals in this paper and the exposure draft of the Crimes (Invasion of
Privacy) Amendment Bill 2017.

We would like to hear feedback from all relevant sectors of the community, including community
and legal services specialising in violence against women and the LGBTIQ+ community, law
reform and enforcement advocates, and the general public.

The discussion paper is to be read in conjunction with the exposure draft and explanatory
statement of the Crimes (Invasion of Privacy) Amendment Bill 2017 available from:

http://www.legislation.act.gov.au/ed/db_56052/

Submissions and comments should be sent to:

The Office of Caroline Le Couteur MLA
ACT Legislative Assembly
196 London Circuit
CANBERRA ACT 2601

PH: 02 6205 1941
EM: lecouteur@parliament.act.gov.au

The consultation period is from 2 June 2017 to close of business on 28 July 2017.

Important note regarding your privacy:

Confidentiality: please note that if you are providing a submission on the exposure draft Bill you
should clearly indicate whether any or all of the submission is confidential. In the absence of a
clear indication that a submission is intended to be confidential we will treat the submission as
non-confidential.

Non-confidential submissions may be made available to any person or organisation on request
during or following the completion of the consultation period.

Confidential submissions may include personal or sensitive information where privacy is required.

Anonymous submissions may be accepted, but we reserve the right not to publish or refer to a
submission whose author is not reliably identified.
4

Foreword

The ACT Greens believe that we need to strengthen ACT criminal laws to specifically address the
issue of non-consensual sharing of intimate images.

We cannot afford to wait and pretend that this is not a problem for the ACT. Only last year, we
saw schools in Canberra linked to a ring of students from over 70 high schools around Australia
orchestrating the distribution of pornographic images of hundreds of young women, being
distributed behind their backs and without their consent. This year, we saw a man take his own
life after threats made by a group of young men to share intimate images of him.

We have deliberately chosen to not use the term “revenge porn”. This term is too narrow, and is
seen by some as victim-blaming. Our legislation goes further than just combating this specific type
of image-based abuse. We are trying to address a wide range of behaviours, as well as make a
number of fixes to our criminal law, to ensure that we are equipped to combat all types of
technology-facilitated abuse, whether image-based or otherwise.

Behind the scenes, we know from recent research that one in five Australians are victims of image-
based abuse - whether that’s up-skirting, down-blousing, so-called “revenge porn”, “sextortion” or
threats of abuse. One in ten Australians have had a nude or semi-nude image of them posted
online or distributed without their consent. With rates of consensual sexual “selfie” behaviours on
the rise - with nearly half of all respondents in a recent RMIT study reporting having shared a
sexual image of themselves - and without strong laws signalling that non-consensual sharing is
unacceptable, the rates of abuse will only continue to climb.

We know ACT laws do not go far enough. We know that our current laws have not caught up with
social trends and that sometimes young people are at risk of mistakenly being charged with child
pornography offences when images are shared with consent. New technologies and the
ubiquitousness of cameras - on our phones, on our computers, in our houses and stores - have
enabled increased levels of photography and video and audio recording of people without their
knowledge or consent. Social media and the internet make these images easy to share and
distribute widely. Our laws have not evolved to adequately and consistently address the use and
impacts of these changes and innovations in technology.

The ACT is now out of step with the rest of Australia. Both South Australia and Victoria have
brought in offences. New South Wales, Western Australia and the Northern Territory are already
in the process too.

This discussion paper not only lays out the groundwork for what the ACT Greens believe is the
correct approach to some of these reforms, it also tells the stories of victims of “revenge porn” and
how this despicable behaviour has impacted the lives of thousands of people in the ACT,
emphasising the need for such legislation.

This is not just a legal problem - it’s a cultural one. This behaviour is the manifestation of
technological advances, a growing normalisation of taking intimate selfies and a growing trend of
using these images to extort, exploit, coerce, threaten and intimidate others. Such acts are based
in power, control and coercion over others. Its increasing prevalence sends a clear and unequivocal
message that we as a community need to take this seriously. And it won’t be tolerated.
5

It is important to recognise that the initial act of documenting intimate or sexual moments is
normal and consistent with community standards. We should be careful to maintain a sex-positive
lens over any reforms and ensure that we do not criticise, shame or demean individuals taking
part in consensual behaviour that involves them sharing intimate images of themselves. The fact
that such a high proportion of adults and young people take part in these consensual activities
highlights the importance of robust laws about non-consensual sharing of these images and the
need for accessible enforcement measures to ensure these behaviours are mitigated and that those
responsible for this behaviour are held accountable for it.

These behaviours are on the rise not simply because of the prevalence of recording devices or
destigmatising the documenting of our most intimate moments. These harmful and destructive
behaviours are on the rise because malicious, exploitative and abusive individuals - most often, but
not always, men - have no reason to fear consequences for their actions.

We know that regardless of whether they have experienced this abuse themselves, 80% of
Australians surveyed think that it should be a crime for someone to share a sexual image of
another person without that person’s permission. But we also know that what Australians have is
an inconsistent response to a growing crisis and the ACT is falling behind nearly every other
jurisdiction in Australia.

We’ve waited long enough and now is the time for reform.

I am releasing this discussion paper and draft legislation for community discussion before I
introduce it to the ACT Legislative Assembly. This legislation will go part of the way to stamping
this appaling behaviour out.

I look forward to reading your feedback and meeting with you over the next two months. The ACT
Greens want to ensure that the ACT gets the best possible legislation and that our community
feels like their voice is heard.

Caroline Le Couteur MLA
ACT Greens Member for Murrumbidgee
6

Scope of Consultation

This discussion paper is specifically seeking feedback on a number of key questions listed on the
next page, as well as any other issues you believe are important and relevant to the discussion
paper and our draft legislation. Ideally, submissions would canvass the following items:

1) What reforms to our criminal system are necessary to give effect to the National Statement of
Principles on the Criminalisation of Non-Consensual Sharing of Intimate Images (“the
National Principles”)?

2) Reflections on the exposure draft of the Crimes (Invasion of Privacy) Amendment Bill 2017
including:

a) which elements of the proposed Bill that would be effective at combating technology-
facilitated abuse and the non-consensual sharing of intimate images;

b) the effectiveness of existing criminal offences;

c) how effective the proposed reforms would be; and

d) any potential issues, loopholes, problems or unforeseen consequences the proposed
reforms could result in.

3) Appropriate terminology and definitions to be adopted in the ACT when discussing technology-
facilitated abuse.

4) Other reforms or implementation measures that need to be considered to complement the
proposed new offences in order to effectively combat technology-facilitated abuse.
7

Specific Feedback Questions

The questions below may help guide discussions and help you to prepare submissions.

General

1) Has this legislation incorporated all of the principles detailed in the National Statement of
Principles relating to the Criminalisation of the Non-Consensual Sharing of Intimate Images
(see Appendix 1)?
2) Does this legislation comply with the ACT’s human rights obligations?
3) Should there be any changes to address infringements on human rights?
4) How will this legislation impact on other groups, especially young people and marginalised or
disadvantaged communities?

Offences in relation to Young People

In relation to proposed section 66A in the Bill:
1) How should the issue of consent be dealt with in relation to images of young people?
2) Do you think this section adequately protects young people under the age of 16 who
consensually share intimate images?
3) Should this legislation distinguish between cases where both parties are minors and cases
where the offender is over 18 years and the other person is not?
4) Do you think it appropriate that the Director of Public Prosecution’s explicit approval is
required for the prosecution of young people under the proposed offences? (section 72I)

Consent

In relation to the proposed sections 67(1) and 72B in the Bill:
1) Is the definition of consent acceptable and effective?
2) Do you foresee any unintended complications arising from the proposed definition?
3) Should consent to having intimate documents shared during the course of a relationship be
assumed to be revoked upon the conclusion of that relationship?

Definitions

In relation to proposed section 72A in the Bill:
1) Are there other behaviours that constitute technology-facilitated abuse that we have failed to
consider or need to be more clearly defined?
2) Does our definition of “device” and “distribute” sufficiently future-proof these offences?
3) Does our definition of “distribute” include all methods of sharing? If not, how?
4) Do you agree that the definition of “intimate” should include images which are not sexual?
5) Do you consider the wider definition of “intimate” could be abused? If so, how?
6) Do you think the term “intimate document” adequately encompasses all variations of the
behaviours these offences seek to address?
8

New Offences

In relation to proposed sections 72C, 72D, 72E and 72G in the Bill:
1) Do you consider the following proposed offences effectively combat the behaviours that amount
to technology-facilitated abuse?
a) non-consensual intimate observations etc-generally (section 72C);
b) non-consensual intimate observations etc- intimate body areas (section 72D);
c) non-consensual distribution of intimate documents (section 72E); and,
d) threat to distribute intimate document (section 72G);
2) Should “threats” be defined? If so, should they include both explicit and implicit threats made
by any conduct?

Exceptions

In relation to proposed section 72F in the Bill:
1) Are the current exceptions clear and effective?
2) Are there other exceptions that need to be considered?

Penalties & Remedies

In relation to proposed section 72H in the Bill and generally:
1) Do you consider the proposed penalties to be appropriate?
2) What other diversionary or alternative sentencing could be appropriate for these penalties?
3) Should the Court be able to order an individual convicted of an offence to take-down/remove the
images in question?
4) Would any additional powers need to be granted to the ACT Government in order to provide
fast relief to victims of these offences?

Other Considerations

1) Are there other civil reforms or common law considerations in relation to this legislation?
2) Should a conviction under the proposed legislation be considered relevant for obtaining a
Working with Vulnerable People Check?
3) How best should these new offences and changes be communicated to the public?
4) Are there further reforms relevant to the aims of this legislation that we should include in the
final Bill?
9

Objectives of proposed changes to the Crimes Act

1. Adopt a “best-practice” model synthesising the key findings from the following:
a. Australian Law Reform Commission Report on Serious Invasions of Privacy in the
Digital Era (ALRC Report 123), 2014;
b. 2016 Senate Inquiry into the Phenomenon colloquially referred to as ‘revenge porn’;
c. “More than Revenge” Universities Roundtable, 2016;
d. NSW Department of Justice Consultation on the sharing of intimate images without
consent, 2016;
e. “Not Just ‘Revenge Pornography’” Interim Report from the ARC Discovery Project into
the Legal Implications of Revenge Pornography, 2017;
f. CoAG Law, Crime and Community Safety Council’s National Statement of Principles
relating to the Criminalisation of Non-Consensual Sharing of Intimate Images, 2017;
g. the experiences of Victoria, South Australia and the United Kingdom and their
evaluations into the efficacy of their current legislation; and
h. the draft bill before the NSW Parliament.
2. Implement recommendations 2 and 3 of the 2016 Senate Inquiry, being that the ACT ensure
our criminal justice system recognises three offences:
a. knowingly or recklessly recording an intimate image without consent;
b. knowingly or recklessly sharing intimate images without consent; and
c. threatening to take and/or share intimate images without consent, irrespective of
whether or not those images exist.
3. Introduce a new category of criminal offence - “Invasions of Privacy”
4. Create a clearer, stronger definition of consent more in line with national standards:
a. add a definition of consent as “consent is free and voluntary agreement” in line with the
2010 Australian Law Reform Commission Report on Family Violence (ALRC Report
114);
b. expand the definition of consent to include a positive action element; and
c. add an additional negating factor being “a mistaken belief as to the nature of the act,
whether by fraud, deceit or failure to provide reasonable information about the nature
of the act” to combat recent “stealthing” (removal of condom during sex) behaviour and
lying about use of prophylactics.
5. Move and split section 61B of the Crimes Act to a new Part 3A - Invasion of Privacy,
recognising that not all intimate observations are necessarily sexual in nature.
6. Adopt the term “document” rather than “image” to include things like audio recordings, as
well as ensuring that things like digitally altered images and postering of photos are
included.
7. Adopt a wider definition of “intimate” to broaden the scope of the offence to include
maliciously sharing images on social media that aren’t necessarily sexual or nude – in line
with the recommendations in the research.
10

Current Context

The purpose of this discussion paper is to explore methods to eliminate non-consensual sharing of
intimate images. Reforms of this nature are slowly being rolled out across Australia following the
2014 Australian Law Reform Commission Report on Serious Invasions of Privacy in the Digital
Era1 and the subsequent 2016 Senate Inquiry into the Phenomenon colloquially referred to as
‘revenge porn’2.

The key takeaway for us from the 2016 Senate Report is Recommendation 3 - that state and
territory governments enact legislation creating the following offences3:

 knowingly or recklessly recording an intimate image;
 knowingly or recklessly sharing intimate images without consent; and
 threatening to take and/or share intimate images without consent, irrespective of whether or
not those images exist.
In May 2017, the CoAG Law, Crime and Community Safety Council agreed to a National
Statement of Principles relating to the Criminalisation of the Non-Consensual Sharing of Intimate
Images (“the National Principles”)4. Attorneys-General from each state and territory, as well as
from the Commonwealth and New Zealand, agreed to implement the National Principles in their
jurisdictions.

These reports and the National Principles form the foundation of this paper. Other states and
territories have made progress in this area in recent years, which is briefly summarised below.

South Australia

South Australia first introduced the Summary Offences (Filming Offences) Amendment Act 2013
which inserted the new offences of “distribution of an invasive image without consent” to the
Summary Offences Act 1953.

Last year, the Summary Offences (Filming and Sexting Offences) Amendment Act 2016 inserted an
offence for threatening to distribute an invasive image as well as bringing South Australia’s
definitions of invasive image more in line with other states.

Victoria

Victoria introduced the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (Vic)
which came into operation on 1 July 2015, before the Senate Inquiry began. The Victorian
legislation added the new offences of “distributing an intimate image without consent” and

1 Australian Law Reform Commission. 2014. Serious Invasions of Privacy in the Digital Era. Report 123. Published
online on 3 September 2014.
2 Parliament of Australia. 2016. Final Report of the Senate Inquiry into the Phenomenon colloquially referred to as
‘revenge porn’. Published online on 25 February 2016.
3 ibid, Recommendation 3 at part 5.19
4 Commonwealth Attorney-General’s Department. National Statement of Principles relating to the Criminalisation of
the Non-Consensual Sharing of Intimate Images. Published online on 19 May 2017.
11

“threatening to distribute an intimate image without consent” to the Summary Offences Act 1966
(Vic).

New South Wales

In response to the NSW Legislative Council’s 2016 Inquiry into Remedies for the serious invasion of
privacy in New South Wales5, the NSW Department of Justice released a discussion paper on the
sharing of intimate images without consent in September 20166. The discussion paper received a
number of robust submissions, many of which are referenced in this discussion paper.

In early May 2017, New South Wales Parliament introduced the Crimes Amendment (Intimate
Images) Bill 20177 implementing the final recommendations of the Inquiry.

Northern Territory

In March 2016, the Northern Territory Law Reform Committee held an inquiry at the request of
the Attorney-General. The NTLRC reported back in November 2016 recommending offences be
introduced to give effect to the 2016 Senate Inquiry’s recommendations8. The NTLRC also made
two interesting recommendations:

6. Public education and awareness campaigns about non-consensual sharing of
intimate images should be implemented by offices such as the Children's
Commissioner and the Federal as well as Northern Territory Police to educate and
support adults, young people and children in relation to digital technology and
cyber-safety.
7. The Northern Territory Parliament should enact appropriate legislation to
establish a statutory based administrative scheme that provides for the rapid issue
of take-down and non-publication notices in relation to intimate images that have
been posted without consent. Alternatively, should the Northern Territory
Parliament be of the view that such an administrative scheme is not appropriate, it
should enact appropriate legislation to empower the Northern Territory Police, or
the individual whose intimate image has been posted, to apply to the Local Court
for an ex parte injunctive order to take-down, and not permit the republication of,
the intimate image.

No legislation has been presented to the Northern Territory Legislative Assembly at this
stage.

Western Australia

In September 2016, the Western Australian Attorney-General announced the Restraining Orders
and Related Legislation Amendment (Family Violence) Bill 2016 (WA) which proposed to empower

5 NSW Legislative Council Standing Committee on Law and Justice. Remedies for the serious invasion of privacy in
New South Wales. Published online on 3 March 2016.
6 NSW Department of Justice. 2016. The sharing of intimate images without consent - ‘revenge porn’. Discussion paper
dated September 2016.
7 Parliament of New South Wales. Crimes Amendment (Intimate Images) Bill 2017. Tabled on 24 May 2017.
8 Northern Territory Law Reform Commission. 2016. Report on the Non-Consensual Sharing of Intimate Images.
12

the Courts to issue Family Violence Restraining Orders to restrain a person from distributing or
publishing intimate images9. A person in breach of that Order would be liable for up to two years
imprisonment. No legislation has been presented to the Western Australian Parliament at this
stage.

Queensland and Tasmania

It is unclear at this stage whether any progress has been made in Queensland and Tasmania.

ACT Law as it stands

ACT does not have a specific offence to combat non-consensual sharing of intimate images. Other
offences have been or could be used to prosecute perpetrators of these behaviours:

 telecommunication offences under the Criminal Code Act 1995 (Cth)10;
 stalking (section 35) and “intimate observations or capturing visual data etc” (section 61B) in
the Crimes Act 1900 (ACT); or
 blackmail (section 342) in the Criminal Code 2002 (ACT) .
Of these, section 61B - “intimate observations or capturing visual data etc” - warrants further
explanation. This section was introduced following the ADFA Skype case (below). This offence was
introduced with the Crimes Legislation Amendment Bill 2014 to “expand the types of voyeuristic
conduct already prohibited by the criminal law” on the justification that “certain private acts
should be subject to interference”11.

The Explanatory Statement for the Crimes Legislation Amendment Bill 2014 refers to the
European Court of Human Rights case Söderman v. Sweden12 which held that a failure to
implement legislation to prevent covert or non-consensual filming or photographing of an
individual is a violation of their rights under Article 8 of the Convention for the Protection of
Human Rights and Fundamental Freedoms. The ACT Government introduced these offences
recognising the complementarity of section 12 of the ACT Human Rights Act 2004 and Article 8.

The Explanatory Statement makes an interesting note on the nature of the right to privacy in the
ACT:

Technological advancements and the development of sophisticated equipment continue
to pose an ongoing threat to individual privacy. Ascertaining the scope of the legal right
to privacy is difficult due to the ongoing tension between freedom of expression and the
privacy rights of an individual. As a result, it is not possible to define the concept as the
characteristics of privacy change over time to remain consistent with community values.

9 Western Australia Attorney-General’s Office. 2016. Major shake-up of WA’s family violence laws. Media release dated
11 September 2016.
10 R v Daniel McDonald and Dylan Deblaquire [2013] ATSC 122
11 Crimes Legislation Amendment Bill 2014 (ACT). Explanatory Statement. Pages 1 and 5.
12 no. 5786/08 (Merits and Just Satisfaction) [GC]. ECHR 2013.
13

It is neither possible nor appropriate to define privacy as the concept of privacy can
mean different things to different people and in defining ‘privacy’ the concept would lose
its relevance.13

The section also introduces a specific offence with the same penalties - section 61B(5) - to address
“upskirting” and “down-blousing”.

This section introduces the term “indecency” as an element of the offences. Indecency is a vague
concept; it is a highly fluid term and can mean different things at different times and to different
communities.

The Explanatory Statement for the Crimes Legislation Amendment Bill 2014 (ACT) even
recognises this vagueness:

The definition of ‘indecency’ has intentionally been left to be defined by current case law
to account for the fluidity of this concept. The importance of having a fluid definition of
‘indecency’ is to allow community values to properly determine what should and should
not be considered indecent according to current community standards.14

The main issues with these offences are their narrow scope; the federal offence is poorly defined
and appears to only cover certain digital communications15, stalking requires either intent or
recklessness on the part of the perpetrator and to prove two separate incidences of the subject
behaviour, blackmail can only be used if “menace” and either a personal gain or loss can be proven,
and to our knowledge, section 61B only addresses the capture not the transmission of intimate
images. It appears that these offences are ineffective at combating non-consensual sharing.

ACT-Specific Incidents

The ADFA Skype Case - R v Daniel McDonald and Dylan Deblaquire [2013] ATSC 122

This case is one of the few examples of a prosecution for non-consensual sharing of intimate
images in the ACT, and also the only prosecution under the current Commonwealth legislation -
using a carriage service to menace, harass or cause offence, a telecommunications offence under
section 474.17(1) of the Criminal Code Act 1995 (Cth). This provision is read quite widely; a
“carriage service” is defined as “a service for carrying communications by means of guided and/or
unguided electromagnetic energy”16 and includes “making a telephone call, sending a message by
facsimile, sending an SMS message, or sending a message by email or some other means using the

13 Crimes Legislation Amendment Bill 2014 (ACT). Explanatory Statement. Page 6.
14 Crimes Legislation Amendment Bill 2014 (ACT). Explanatory Statement. Page 8.
15 Senate Report. pages 49 to 51.
16 Telecommunications Act 1997 (Cth), section 7
14

Internet.”17 The breadth of this offence is also its weakness. It has been very difficult to pin down
prosecutions, and is poorly enforced, even by the admission of the Commonwealth prosecutor.18

Putting aside questions about the nature of the masculine culture in the Australian Defence Force,
this high profile case clearly highlights the difficulty law enforcement has in prosecuting these
behaviours.

The 2016 Schools Pornography Case

In early 2016, a major police investigation lead by the Australian Federal Police identified over 70
Australian schools whose students were involved in a “child exploitation ring” run from an online
chat forum19. Five of those schools were in the ACT. Young women were targeted by young men
they knew, and their photographs, sometimes naked, were shared around to be “rated”. The case
illustrated how entrenched social attitudes are; attitudes that lead to young men at school seeing
their female classmates and friends as “conquests”, with little regard for the impact their actions
would have on those whose images were being shared.

Importantly, this was not an incident of “stalking” or “surveillance”. In all likelihood, many of the
images shared were originally captured and shared consensually. The trust that those young
women had that the other person, their friend or romantic partner, would not share these private,
intimate images with others, was quickly shattered. The case represented a betrayal of their trust,
an invasion of their privacy, and an exploitation of their sexuality.

In combating this behaviour, it is important that we do not shame or repress these young women;
the fault lies with the young men who betrayed their trust. The case highlighted the need for law
reform in the ACT, not just to ensure that these behaviours are criminalised, but also to send a
strong message to the community and to other young people, that the ACT community does not
tolerate those beliefs.

The 2017 Grindr Blackmail Case

Data from a recent RMIT study into “Australians’ Experiences of Image-Based Abuse” published in
May 2017 showed that imaged-based abuse victimisation is higher for lesbian, gay and bisexual
Australians.20

In a recent case in the ACT, a group of young men - some under the age of 18 - targeted gay men
on Grindr, a dating app for gay men.21 They exploited the trust of other people via the app to
extract information and footage of them, and then proceeded to extort, threaten and blackmail
them. Lists were kept of who had been targeted and how much money had been gained. Tragically,
in this case, a young man who had been a victim of targeted blackmail took his own life, and while

17 Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No 2) 2004 (Cth).
Explanatory Memorandum.
18 “Top Prosecutor Warns Australia’s Revenge Porn Laws are Too Weak to Properly Protect Women”. The Australian. 11
January 2016.
19 “Police investigate pornography ring targeting Australian schoolgirls”. ABC News. 18 August 2016.
20 Henry, Nicola, Powell, Anastasia, and Flynn, Asher. 2017. Not Just ‘Revenge Pornography’: Australians’ Experiences
of Image Based Abuse. Summary Report. May 2017. Page 7.
21 “Grindr scam victim ‘had everything to live for’, ACT court hears”. ABC News. 10 May 2017.
15

the Court could not prove that the extortion and blackmail attempts were directly to blame, it is
clear that they were a factor.

In both the Grindr case and the earlier one with ACT schools, the perpetrators were teenage men.
The scale of the problem shows the need to not just take a “tough on crime” approach to
technology-based abuse, but also the need to work on changing attitudes and beliefs, especially
among young people. It is critically important to ensure that our young people are taught from an
early age, at school and at home, about respectful relationships.

Statistics

In a 2015 report, Dr Anastasia Powell (RMIT University) and Dr Nicola Henry (La Trobe
University) published the results of a survey of nearly 3,000 Australian adults (aged 18 to 54)
about their experiences with digital abuse and harassment.22

Table 1: lifetime prevalence of selected digital abuses among 2,956 adults23 n %

Unwanted sexually explicit images, comments, emails or text messages 829 29.0
Embarrassing images of you posted online without permission 825 28.7
Sexually harassed you 563 20.0
Publicly posted online an offensive sexual comment about you 387 13.6
Described or visually represented unwanted sexual act against you 373 13.1
Nude or semi-nude image taken without permission 305 10.7
Threat of nude or semi-nude image to be posted online or sent onto others 273 9.9
Nude or semi-nude image posted online or sent onto others without consent 262 9.3

That means that one in ten Australian adults have been the victim of the non-consensual sharing
of intimate images. The study also found that:24

 men and women were just as likely to report experiencing digital harassment and abuse (just
over 60% of the adult population);
 women were more likely than men to report experiencing online sexual harassment at 21.8%
of women compared to 17.7% of men;
 young women aged 18-19 were the most likely group to experience sexual harassment (37%)
and experience repeated and unwanted sexual requests online (25%);
 LGBTIQ+ respondents were significantly more likely to report being the target of sexual
harassment;

22 Powell, A and Henry, N. 2015. Digital Harassment and Abuse of Adult Australians: A Summary Report. RMIT
University.

23 ibid.

24 ibid, at page 2.
16

 women overwhelmingly experienced harassment and abuse from men (68%), while men
experienced abuse roughly equally from men and women (32% each);
 strangers make up only 28% of perpetrators and over 70% of online harassment came from
someone the victim knew - a work colleague (8%), family member (8.4%), sexual partner
(14.4%) or a friend (22%); and

 digital harassment and abuse of women was significantly more likely to be “very or extremely
upsetting” because of experiences of past violence, victim-blaming or sexual double
standards.
There is, unsurprisingly, little data on actual enforcement and prosecution under offences created
to combat non-consensual sharing. Data from the Victorian Government was made available to the
recent More than Revenge Universities Roundtable in Melbourne, and indicates 102 offences
recorded in the 12 months following the new offences coming into operation in late 2014. The
majority of offenders were male (86%), and the majority of victims were female (84%), and
adolescents (aged 10 to 17 years) and young people (aged 18 to 29 years) were overrepresented in
both the offender and victim groups25.

Cultural & Attitudinal Change

As technology advances and becomes more accessible, the challenge is to keep pace, both legally
and attitudinally. While legal redress is not the only way to address non consensual sharing of
intimate images, it does send a clear message that this behaviour is not appropriate and
constitutes a criminal offence. Importantly, other non-legal responses are also required. This can
include civil penalties and non-legal remedies, support services for those who have been victimised
and importantly educational campaigns aimed at the cohorts most likely to engage in his
behaviour. Initiatives such as respectful relationships education can include sections about
technology-facilitated abuse and non-consensual sharing of images.

Whatever solutions we come up with, they must deter. At the moment we are trying to
limit the damage once it has already been done. The point of legislation is to be
expressive and communicate to society that this is something you should not do – so don’t
do it. People must understand how serious this is and that it will ruin someone’s life …
Social attitudes don’t change merely because of the law. However, the more the law
explicitly recognises that this is a social problem, the more we may address some of the
harms. It is the bigger social attitude problem that we have to fix.

Professor Mary Anne Franks26

The wide range of behaviours that make up technology-facilitated abuse will not be eliminated
solely through legal means. Even the most robust law and perfect enforcement fails to address the

25 Data from the Victorian Government’s Crime Statistics Agency quoted in Henry, N, Flynn, A, and Powell, A. 2016a.
More than Revenge: Addressing the Harms of Revenge Pornography. Report of the More than Revenge Roundtable
hosted by Monash University, La Trobe University and RMIT University on Monday, 22 February 2016, page 6.
26 Franks, MA. 2015a. “How to Defeat “Revenge Porn”: First, Recognize it’s about Privacy, Not Revenge”. Huffington
Post. 22 June 2015.
17

culture of toxic masculinity that gives rise to these behaviours in the first place - a culture learned
and spread at work, in school and in the home. To effectively combat these behaviours, the
Government must support a comprehensive and coordinated community education campaign that
targets relationships that facilitate harm.

DeKeseredy outlines a theory of social patriarchy that relies on “male peer support” networks to
reinforce toxic behaviours, both online and offline.27 These networks can create a subculture of
violence and incite hatred and problematic behaviours amongst their members. Importantly,
members can legitimise each others’ abusive behaviours as a cyclical and self-reinforcing
attachment behaviour.

Terminology

“Revenge Porn”

We accept that the public, in common parlance, will often refer to the subject phenomenon of this
discussion paper as “revenge porn”. We feel that this language is too narrow, and is seen by some
as “victim-blaming”.

Building on the experience of other jurisdictions and the results of various inquiries around
Australia28, and after consulting with local stakeholders, we believe that, where possible, we
should refer to the “non-consensual sharing of intimate images” or “technology-facilitated sexual
abuse” interchangeably.

The key rationale behind this language change is to include images acquired by “hacking” as well
as a result of a relationship breakdown.29 This is also to recognise that use of words like “revenge”
or “pornography” encourage blaming the victim for their behaviour rather than focusing on the
harm caused by the perpetrator.30 The Commonwealth Director of Public Prosecutions further
notes that images that do not amount to pornography, and that may be intimate or personal rather
than sexual or explicit in nature, may still be disseminated without consent with the intention to
cause the victim distress or humiliation.31

It is also worth highlighting the wide variety of motivations of the perpetrators of these subject
behaviours. The term “revenge porn” calls up thoughts of jilted lovers, or a vengeful ex-partner,
where in reality, these behaviours often form part of complex cycles of abuse; perpetrators of
domestic and family violence using the threat of disclosure to keep their partners from leaving,

27 DeKeseredy, W & Corsianos, M. 2016. Violence Against Women in Pornography. Routledge. See also: Henry, N,
Flynn, A, and Powell, A. 2016a. page 9.

28 Senate Report, page 1 at part 1.5

29 Senate Report, page 15 at part 2.3

30 Senate Report, pages 15 and 16 at parts 2.4 through 2.8

31 Commonwealth Department of Public Prosecutions. Submission to the Inquiry into the phenomenon colloquially
referred to as ‘revenge porn’. Submission 3. Part 4 at page 28.
18

human traffickers trapping unwilling individuals in the sex trade, and rapists recording their
attacks to discourage victims reporting assaults.32

Intimate

We have chosen to use the term “intimate” in describing the documents captured by our offences
over other terms like “sexual” or “private”, as some other jurisdiction have used. This is to
recognise that the documents must be interpreted with reference to relevant cultural contexts and
community standards. In a submission to the 2016 Senate Inquiry, an example of “photographs of
a Muslim woman without her hijab” was given as an “intimate image”33. Further, we would
suggest sharing images of trans-people from before or during their transition without their
permission could be interpreted as an “intimate image”.

It is also essential that, while the definition is flexible enough to encompass these types of images,
it must not be so broad as to include “socially acceptable” images, such as two adults kissing, an
adult sunbathing in swimwear34, or “a parent sending family members and friends a photograph of
their naked newborn baby”35.

Sharing

Sharing must be defined widely to include methods including, but not exhaustively36:

 text message, SMS or MMS, or similar;
 email;
 submission to pornographic or “ex-girlfriend revenge” websites;
 uploading to social media, forums, image boards, or image sharing sites;
 distribution by mail; and
 public display, by postering, billboards or similar.

It is difficult to chose a suitable term here. There appears to be a rough consensus that either
“sharing”, “disclosure” or “distribution” are acceptable terms to describe the behaviour of making
these documents observable.

We have opted to use the word “distribution” at this stage and have inserted a definition in the
Bill.

32 Franks, MA. 2015b. Drafting an effective “revenge porn” law: a guide to legislators. University of Miami. page 3.

33 Senate Report, page 2 at part 1.13
34 Henry, N, Flynn, A & Powell, A. 2016b. Submission to the Inquiry into the phenomenon colloquially referred to as
‘revenge porn’. Submission 9. Page 5.
35 Department of Justice and Regulation Victoria. 2015. Victoria's New Sexual Offence Laws: An Introduction.
36 Senate Report, page 3 at part 1.15
19

Technical Details

Consent

At present, the Crimes Act fails to define consent. Instead it lists “negating factors” - behaviours
such as duress or fraud that would negate consent after it was given.

We believe that defining something by what it is not does not make good law. This is an
opportunity to consider the way society approaches the concept of consent.

Given that the ACT is the only Australian jurisdiction without a statutory definition of consent,
the Bill will add a definition of consent in line with national standards. At the moment, the ACT
requires juries to be instructed that a person has not consented just because they did not say or do
anything to indicate non-consent.37 These legislative statements are designed to respond both to
the historical requirements of physical resistance to demonstrate non-consent and the discredited
myth that people who do not consent will always be able physically to resist. This means that
consent is only discussed in a trial, by a judge. The 2010 ALRC Report on Family Violence—
Improving Legal Frameworks recommended the ACT adopt “free and voluntary agreement” as the
statutory definition for consent.38

Our legislation goes further. We believe that the obligation should be on the defendant to prove
that consent was given and, as a society, we should never “assume” consent. A number of
Australian jurisdictions have considered this reform39, typically in reference to the defence “where
belief in consent not a defence” in section 273.2 of the Criminal Code (Canada) which reads:

It is not a defence to a charge under section 271, 272 or 273 that the accused believed
that the complainant consented to the activity that forms the subject-matter of the
charge, where
(a) the accused’s belief arose from the accused’s
(i) self-induced intoxication, or
(ii) recklessness or wilful blindness; or
(b) the accused did not take reasonable steps, in the circumstances known to the accused
at the time, to ascertain that the complainant was consenting.40
The Canadian construction has proven popular among health and victims services, feminist
activists and victims’ rights activists.41 Domestic violence advocates have repeatedly highlighted
that a positive obligation for a person to take a positive action and get a positive response from
another person is essential to ensure victims of domestic and family violence are protected.

37 Australian Institute of Family Studies. 2005. The Law and Sexual Offences against Adults in Australia.
38 Australian Law Reform Commission. 2010. Family Violence —Improving Legal Frameworks. ALRC CPS 1.
39 New South Wales Attorney-General’s Department. 2007. The Law of Consent and Sexual Assault. Discussion Paper.
Page 29-30.
40 section 273.2, Criminal Code (Canada) (R.S.C., 1985, c. C-46). Note: the “meaning of consent” at section 273.1(1) is
“the voluntary agreement of the complainant to engage”.
41 New South Wales Attorney-General’s Department. 2007. The Law of Consent and Sexual Assault. Discussion Paper.
Page 29.
20

Intention to cause harm

An American case highlights behaviours that would fall under most people’s definition of “revenge
porn” that failed to be read widely enough. A closed “satirical” Facebook group encouraged its
members to upload photographs of unconscious women at parties, without the victims’ knowledge
or consent. The case fell through on the inability to prove intention to cause harm, since only
members of the group could see the photographs. 42

Similarly, in the UK, during debates in the Scottish Parliament to criminalise “upskirting”,
advocates found that parliamentarians (largely older men) were unaware of the problem in the
first place, and decided to ultimately put off implementing the changes until it became “a major
issue”.43

These examples are emblematic of intention- or harm-centric conceptions of these behaviours,
which overlook the fact that many perpetrators - and many members of the community - fail to
recognise that these behaviours are even capable of causing harm. An activity-centric conception
would prevent these issues occurring in the ACT.

Certain advocates have proposed a complete refocusing of the harm from the act of sharing to the
initial invasion of privacy.44 This strategy is contingent on similar civil penalties for invasions of
privacy and the criminal penalty to complement or supplement that. Professor Barbara McDonald
of the University of Sydney argues that “wrongs” of intrusion into seclusion and misuse of private
information directs intent toward the initial invasion (which is an objective test) rather than at
harm to the victim. The question is then only one of seriousness; was the invasion intentional or
merely reckless. While this approach is novel, it is complex and difficult to communicate.

In our draft legislation, we have opted to not include an element of intention or an element of
provable harm, to ensure these behaviours are prosecuted based on behaviour, regardless of intent
or harm.

Community Standards

Victoria’s offence contains a “community standards of acceptable conduct” clause. In determining
“community standards”, the Court must give regard to45:

a. the nature and content of the image;
b. the circumstances in which the image was captured;
c. the circumstances in which the image was distributed;
d. the age, intellectual capacity, vulnerability or other relevant circumstances of a person
depicted in the image; [and,]
e. the degree to which the distribution of the image affects the privacy of a person depicted
in the image.

42 Henry, N, Flynn, A, and Powell, A. 2016a. page 11
43 Henry, N, Flynn, A, and Powell, A. 2016a. page 12
44 Henry, N, Flynn, A, and Powell, A. 2016a. page 14
45 Summary Offences Act 1966 (Vic). Section 40.
21

The aim of the clause was to ensure that the offence does not “unjustifiably interfere with
individual privacy and freedom of expression”.46

We have opted in favour of the more general language of “in the person’s circumstances” and to not
provide a detailed legislative test. We believe that a common law test would be more appropriate
for the ACT.

Public Interest Exception

Improperly drafted legislation may inadvertently lead to individuals recording and reporting
unlawful conduct for the purpose of reporting this conduct to law enforcement or relevant
government bodies. The example provided in literature is typically of a concerned citizen
photographing people engaging in sexual conduct in a public place or “flashing” their genitals to
passers-by47.

In a local context, we have been informed of cases where teachers have intercepted students
distributing sexual images of their peers, confiscated their devices, or otherwise acquired the
offensive imagery, and been in a position where it is unclear whether they can report the conduct
to their supervisors or the police without themselves being liable for possession of sexually-explicit
images of persons under 16. Although this is a separate issue, it raises the need for robust and
secure public interest disclosure processes and accompanying defence to ensure that individuals
seeking to report the subject offences are not themselves liable.

We have opted to insert an exception at section 72F(2) that excludes non-consensual distribution of
intimate documents “in the public interest”.

Other Exceptions

In addition to the exceptions at section 72F(2), we have not included the following exceptions as
they seemed unnecessary, we are not confident of how wide their scope could be or if there could be
unforeseen ramifications, or we believed they would be covered under the public interest exception.

 “for the purpose of obtaining evidence in a particular context by a licensed investigation
agent”48 [Note: The ACT does not currently require private investigators to be licensed]
 “for the purpose of voluntary exposure in public or commercial settings”49
 “for the purpose of publishing images that were reasonably disclosed for reward”50
 “for genuine artistic, journalistic or performative purposes”51
 “for the purpose of publicly exposing instances of harassment and abuse”52

46 Crimes Amendment (Sexual Offences and Other Matters) Bill 2014 (Vic). Second Reading Speech. 21 August 2014.
47 Franks. 2015b. page 5.
48 Summary Offences (Filming Offences) Amendment Act 2013 (SA), s26C
49 Henry, N, Flynn, A and Powell, A. 2016c. Submission to NSW Department of Justice on the discussion paper on the
sharing of intimate images without consent.
50 Criminal Justice and Courts Act 2015 (UK), s33(5)(a)
51 Criminal Justice and Courts Act 2015 (UK), s33(4). See also: Legal Aid NSW. 2016. Submission to NSW Department
of Justice on the discussion paper on the sharing of intimate images without consent. Pg 14.
22

We recognise there are likely other exceptions we did not contemplate. We invite submissions on
all possible exceptions.

Civil Causes of Action

A number of inquiries and reports refer to an outstanding need for a civil claim of some variety to
allow victims of the subject offences to claim damages or seek injunctive relief. Most point to the
statutory tort for serious breach of privacy proposed in the Australian Law Reform Commission
2014 Report on Serious Invasions of Privacy in the Digital Era53.

A legislative approach to introduce a tort for serious invasions of privacy would allow for better
consultation with the community. These are complex, technical issues that we strongly suggest
relevant stakeholders make submissions on. We understand the delicate balance between the
reasons for introduction outlined in the ALRC Report and concerns over restricting freedom of
expression raised by media and arts organisations. We believe that, together, we can create a best
practice system that ensures victims can access damages and restitution without undue
restrictions on speech and expression.

We understand that there may be a possible claim for breach of confidence available at common
law as a result of Giller v Procopets54.

Further analysis of civil causes of action for invasions of privacy are beyond the scope of this
discussion paper. We will examining this issue in more depth over the next year.

52 Legal Aid NSW. 2016. Submission to NSW Department of Justice on the discussion paper on the sharing of intimate
images without consent. Pg 15.
53 ALRC, ALRC Report 123: Serious Invasions of Privacy in the Digital Era, June 2014.
54 [2004] VSC 113 at 148 to 171.
23

Appendix 1: National Principles

On 19 May 2017, Ministers with responsibility for law and justice, police and emergency
management from the Commonwealth, each State and Territory and New Zealand met in
Melbourne and agreed to the National Statement of Principles relating to the Criminalisation of
the Non-Consensual Sharing of Intimate Images, underpinning future reforms and the
criminalisation of the non-consensual sharing of intimate images.

The National Principles are as follows:

General principles

1. The distribution of, or threat to distribute, intimate images without consent is unacceptable
and breaches community standards of acceptable behaviour.
2. The protection and respect of victims and minimisation of harm to victims is essential in
responding to the non-consensual sharing of intimate images.
3. The non-consensual sharing of intimate images may involve a variety of responses as each
jurisdiction considers appropriate, including criminal offences of specific or general
application, civil responses, education, awareness, prevention and support for those
impacted.
4. Responses to the non-consensual sharing of intimate images should be designed to
encompass the broad range of conduct, motivations, relationships and means of distribution
that such behaviour can involve.
Scope of criminal offences

5. Any criminal offence framework for non-consensual sharing of intimate images should not
capture conduct that does not warrant criminal sanctions, such as the sharing of intimate
images between consenting adults and the initial taking or sharing of the intimate image by
the person depicted in the image.
6. Any offence framework should consider whether, and if so, how, it applies to distributors
who are minors. An offence should be clearly distinct from criminal conduct already
captured by existing child sexual exploitation laws.
7. Jurisdictions should consider whether offences address threats to distribute intimate
images without consent, irrespective of whether or not the intimate image exists.
8. Offences should contemplate existing and emerging technologies.
9. Concepts of sharing or distribution should be kept broad and inclusive to capture the
various ways in which intimate images are or might in the future be shared, including
public distribution and one-on-one sharing.
10. The form of the intimate images covered by the offences should be defined broadly and
inclusively to cover still images and visual recordings.
11. Concepts equivalent to a reasonable expectation of privacy or community standards of
acceptable behaviour may be reflected in an offence as each jurisdiction deems appropriate.
24

Consent and harm

12. Consideration should be given to the merits and risks of offence structures to address the
lack of consent to distribution by the person depicted in the intimate image as each
jurisdiction deems appropriate.
a. The issue of consent may be addressed in a variety of ways, whether by inclusion as
an element of the offence, as an available defence, or considered when determining
whether conduct is contrary to community standards of acceptable behaviour.
b. Where an offence addresses the issue of a lack of consent, criminal liability may
apply where a defendant either knew that there was no consent to distribute the
image or was reckless as to whether consent had been obtained.
13. An offence for sharing intimate images should not require proof that harm has been caused
to the person depicted in the image by the sharing of the intimate image.
14. If appropriate for the relevant jurisdiction, an offence for sharing intimate images should
not require proof of an intention to cause harm or distress or another outcome.
Investigative powers

15. Noting that the non-consensual sharing of intimate images is predominantly committed
using technology and telecommunications devices, jurisdictions should have regard to the
sufficiency of investigative powers under procedural laws to allow adequate investigation.
16. Consideration should be given to the challenges of enforcement, noting the online nature of
the majority of this conduct and its prevalence across jurisdiction boundaries.
Penalties

17. Penalties should reflect a proportionate and necessary response to the seriousness of this
criminal conduct. Depending upon the jurisdiction and recognising judicial discretion in
sentencing practices, aggravating factors that increase the subjective seriousness of the
conduct may be relevant to penalties.
25

Appendix 2: Recommendations from the Senate Inquiry

The Senate of the Commonwealth of Australia passed a motion on 12 November 2015 for the
Senate Legal and Constitutional Affairs References Committee to inquiry into “the phenomenon
colloquially referred to as ‘revenge porn’, which involves sharing private sexual images and
recordings of a person without their consent, with the intention to cause that person harm” and
similar relevant matters. The recommendations arising from the Inquiry were:

 To use the phrase “non-consensual sharing of intimate images” in legislation and formal
documentation;
 To legislate offences for:
o knowingly or recklessly recording an intimate image without consent;
o knowingly or recklessly sharing intimate images without consent; and
o threatening to take and/or share intimate images without consent, irrespective of
whether or not those images exist.
 That states and territories legislate the same above;
 To the Commonwealth Government empower an agency to issue take-down notices for
subject images, and establish a formal mechanism whereby relevant organisations and
service providers engage in ongoing consultation on eliminating non-consensual sharing of
intimate images;
 That, in line with the Australian Law Reform Commission’s 2014 Report on Serious
Invasions of Privacy in the Digital Era55, a statutory cause of action for invasion of privacy be
established;
 To implement a public education and awareness campaign via the Office of the Children’s
eSafety Commissioner and the Australian Federal Police; and,
 That all police undertake minimum basic training in relation to non-consensual sharing of
intimate images and relevant new offences.

55 ALRC, ALRC Report 123: Serious Invasions of Privacy in the Digital Era, June 2014. Available at:
https://www.alrc.gov.au/publications/serious-invasions-privacy-digital-era-alrc-report-123
26

Appendix 3: Further Reading

Research & Reports

Australian Law Reform Commission. 2010. Family Violence —Improving Legal Frameworks.
ALRC CPS 1. Available online at: http://www.alrc.gov.au/publications/family-
violence%E2%80%94improving-legal-frameworks-alrc-cps-1

Australian Law Reform Commission. 2014. Serious Invasions of Privacy in the Digital Era. ALRC
Report 123. Available at: https://www.alrc.gov.au/publications/serious-invasions-privacy-digital-
era-alrc-report-123

Henry, Nicola, and Powell, Anastasia. 2016. Digital Harassment and Abuse of Adult Australians.
Available online at: https://research.techandme.com.au/wp-
content/uploads/REPORT_AustraliansExperiencesofDigitalHarassmentandAbuse.pdf

Henry, Nicola, and Powell, Anastasia. 2016. “Sexual Violence in the Digital Age: The Scope and
Limits of Criminal Law”. Social & Legal Studies. 25(4). at pages 397-418.

Henry, Nicola, Powell, Anastasia, and Flynn, Asher. 2016. More than Revenge: Addressing the
Harms of Revenge Pornography. Report of the More than Revenge Roundtable hosted by Monash
University, La Trobe University and RMIT University on Monday, 22 February 2016. Available
online at: http://www.latrobe.edu.au/__data/assets/pdf_file/0010/728794/More-than-Revenge-Final-
Report-Nicola-Henry.pdf

Henry, Nicola, Powell, Anastasia, and Flynn, Asher. 2017. Not Just ‘Revenge Pornography’:
Australians’ Experiences of Image Based Abuse. Summary Report. May 2017. Available online at:
https://www.rmit.edu.au/content/dam/rmit/documents/college-of-design-and-social-
context/schools/global-urban-and-social-studies/revenge_porn_report_2017.pdf

Lee, Murray, Crofts, Thomas, McGovern, Alyce and Milivojevic, Sanja. 2015. Sexting and Young
People: A Report to the Criminology Research Advisory Panel. Available online at:
http://www.criminologyresearchcouncil.gov.au/reports/1516/53-1112-FinalReport.pdf

Other Jurisdictions

Australian Institute of Family Studies. 2005. The Law and Sexual Offences against Adults in
Australia. Available online at: https://aifs.gov.au/publications/law-and-sexual-offences-against-
adults-australia/non-consent-victim-complainant

DeKeseredy, W & Corsianos, M. 2016. Violence Against Women in Pornography. Routledge.

Fitzpatrick, Stephen. 2015. “Best Served Cold”. Law Society of Ireland Gazette. April 2015.
Available online at: https://www.lawsociety.ie/Documents/Gazette/Gazette%202015/Gazette-
april2015.pdf

Franks, Mary Anne. 2015. Drafting an effective “revenge porn” law: a guide to legislators.
University of Miami. Available online at: https://www.cybercivilrights.org/wp-
content/uploads/2016/09/Guide-for-Legislators-9.16.pdf
27

Henry, Nicola, Powell, Anastasia, and Flynn, Asher. 2016. Submission to NSW Department of
Justice on the discussion paper on the sharing of intimate images without consent. Available online
at: http://www.justice.nsw.gov.au/justicepolicy/Documents/distribution-of-intimate-images-without-
consent/Dr%20N%20Henry%20Dr%20A%20Powell%20and%20Dr%20A%20Flynn.pdf

Law Reform Commission of Ireland. 2016. Harmful Communications and Digital Safety. LRC
Report 116. Available online at: http://www.lawreform.ie/news/report-on-harmful-communications-
and-digital-safety.683.html

New South Wales Attorney-General’s Department. 2007. The Law of Consent and Sexual Assault.
Discussion Paper. Page 29-30. Available online at:
www.justice.nsw.gov.au/justicepolicy/Documents/consentdp.doc

New South Wales Department of Justice. 2016. Discussion Paper on the sharing of intimate images
without consent - ‘revenge porn’. Available online at:
http://www.justice.nsw.gov.au/justicepolicy/Pages/lpclrd/lpclrd_consultation/sharing-intimate-
images.aspx

Northern Territory Law Reform Commission. 2016. Report on the Non-Consensual Sharing of
Intimate Images. Available online at:
https://justice.nt.gov.au/__data/assets/pdf_file/0011/425666/Northern-Territory-Law-Reform-
Committee-Report-on-the-Non-Consensual-S....pdf

Parliament of New South Wales. 2016. Inquiry into remedies for the serious invasion of privacy in
New South Wales. Legislative Council Standing Committee on Law & Justice. Available online at:
https://www.parliament.nsw.gov.au/committees/inquiries/Pages/inquiry-details.aspx?pk=1877

Parliament of Victoria. 2013. Inquiry into sexting. Law Reform Joint Committee. Available online
at: https://www.parliament.vic.gov.au/57th-parliament/lawreform/article/944

Queensland Sentencing Advisory Council. 2017. Sentencing Spotlight on child exploitation
material offences. Available online at:
http://www.sentencingcouncil.qld.gov.au/__data/assets/pdf_file/0010/519535/sentencing-spotlight-
on-child-exploitation-offences.pdf

Civil & Common Law Matters

ACT Justice & Community Safety Directorate. 2016. Review of Civil Surveillance Regulation
report. Available online at: http://www.justice.act.gov.au/review/view/45/title/review-of-civil-
surveillance-in

Commonwealth Department of Communications and the Arts. 2017. Commonwealth discussion
paper on a civil penalties regime for non-consensual sharing of intimate images. Available online
at: https://www.communications.gov.au/have-your-say/civil-penalty-regime-non-consensual-
sharing-intimate-images

Dale, Joshua. 2017. “Senders, sharers, likers and tweeters beware - the civil implications of the
crime of revenge porn”. Precedent: The Journal of the Australian Lawyers Alliance. 138. Jan/Feb
2017. at pages 41-44.
28

Howe, Keith. 2015. “I Spy with my Little Drone”. Hearsay: The Journal of the Bar Association of
Queensland. 73. Available online at:
http://www.hearsay.org.au/index.php?option=com_content&task=view&id=1981&Itemid=4

Parliament of New South Wales. 2015. Research brief on revenge pornography, privacy and the
law. eBrief 7/2015 from the NSW Parliamentary Research Service. Available online at:
https://www.parliament.nsw.gov.au/researchpapers/Documents/revenge-pornography-privacy-and-
the-law/revenge%20pornography%20privacy%20and%20the%20law.pdf

Raina, Roshaan. 2016. “Revenge porn: is it time for a statutory privacy tort?”. Law Institute of
Victoria Journal. Available online at: https://www.liv.asn.au/Staying-
Informed/LIJ/LIJ/November/Revenge-porn--Is-it-time-for-a-statutory-privacy-
t#.WNIDPUFRiQ0.email

South Australian Law Reform Institute. 2016. A statutory tort for invasion of privacy. Available
online at: https://law.adelaide.edu.au/research/law-reform-
institute/documents/privacy_final_report_4.pdf

Media Articles

Fettes, James. 2016. “ACT ‘revenge porn’ laws on the table in new Legislative Assembly, Greens
say”. ABC News. Available online at: http://www.abc.net.au/news/2016-09-06/act-revenge-porn-
laws-on-table-in-new-legislative-assembly/7820272

Franks, Mary Anne. 2015. “How to Defeat “Revenge Porn”: First, Recognize it’s about Privacy, Not
Revenge”. Huffington Post. 22 June 2015

Gorey, Michael. 2017. “Petition calls on ACT government to introduce ‘revenge porn’ laws.”.
Canberra Times. 23 March 2017. Available online at: http://www.canberratimes.com.au/act-
news/petition-calls-on-act-government-to-introduce-revenge-porn-laws-20170322-gv4gaj.html

“Greens promise the criminalise revenge porn”. CityNews. 6 September 2016. Available online at:
http://citynews.com.au/2016/greens-promise-criminalise-revenge-porn/

“Grindr scam victim ‘had everything to live for’, ACT court hears”. ABC News. 10 May 2017.
Available online at: http://www.abc.net.au/news/2017-05-10/grindr-scam-victim-had-everything-to-
live-for,-court-hears/8515220

“Police investigate pornography ring targeting Australian schoolgirls”. ABC News. 18 August 2016.
Available online at: http://www.abc.net.au/news/2016-08-17/police-investigate-child-porn-ring-
targeting-australian-schools/7750586

“Top Prosecutor Warns Australia’s Revenge Porn Laws are Too Weak to Properly Protect Women”.
The Australian. 11 January 2016. Available online at:
http://www.news.com.au/technology/online/security/top-prosecutor-warns-australias-revenge-porn-
laws-are-too-weak-to-properly-protect-women/news-story/b597b7c0f1b0f76c7b7980ca545b512a