Crimes (Invasion of Privacy) Amendment Bill 2017
Cameras seem to be everywhere these days. They are on everything from phones to computers. However, whilst these technologies have a great capacity to enrich our lives they have an enormous capacity to cause harm. Many have argued that current Commonwealth and ACT laws have not evolved to adequately address the negative impacts of these innovations.
The sharing of “revenge porn” is often pointed to as proof that current legislative regimes do not adequately address the issues these evolving technologies create. This term refers to the sharing of intimate images of a current or former sexual partner with the aim to cause harm or distress. This phenomenon has the very real potential to cause immense damage to the victim: socially, psychologically and even career wise.
To rectify the harm caused from the non-consensual sharing of such intimate images and documents, Caroline Le Couteur MLC of the ACT Greens, has tabled legislation that proposes to criminalise such activity. The Bill, known as the Crimes Invasion of Privacy Amendment Bill 2017 (ACT) (‘The Bill’), will also provide a stronger definition of “consent” in the ACT’s Criminal Code.

The Bill – Criminalisation

The Bill proposes to introduce four new offences into the ACT’s Criminal Code. These are as follows:

Non-consensual intimate observations etc-generally.

This provision proposes to make it an offense to, with the aid of a device, observe or capture visual data of another person. However, it must be considered by a reasonable person, in all the circumstances to be both an invasion of privacy and indecent

Non-consensual intimate observations etc-intimate body areas.

This provision proposes to make it an offense to observe with the aid of a device, or capture visual data of an intimate body area of another person. Again a reasonable person must, in all the circumstances, consider such observation or capture to be an invasion of the other person’s privacy.

Non-consensual distribution of intimate documents.

This is the provision that would most apply to the phenomenon of “revenge porn”. It makes it an offense to distribute intimate documents relating to another person. Again the standard of a reasonable person applies. A reasonable person must, in all the circumstances, consider the distribution of the intimate document to be an invasion of the other person’s privacy.

Threat to distribute intimate document.

This provision seeks to rectify immense harm that can be done even by the threat of the sharing of intimate images alone. It makes it an offense for a person to threaten to distribute an intimate document relating to the threatened person, or once more, another person. Again the same standard of the reasonable person applies as outlined in the explanation of the provisions above.

The Bill – Changes to “Consent”

In addition to the new offences to be introduced, the Bill also amends the definition of “consent” under the ACT’s Criminal Code. This new definition would apply to the proposed new offences, as well as sexual offences under the Code more broadly. The new definition would define consent as:

  1. An Agreement;
  2. That was free and voluntary;
  3. Expressed or communicated;
  4. With a positive action; and
  5. By the person to another person.

This definition should help to protect victims of sexual offences better by placing the onus of proving that consent was present in the encounter on the alleged offender.

Exceptions and Defences

There are exceptions and defences provided for in the Bill and include:

  • For law enforcement officers acting reasonably in the performance of their duties;
  • A licensed security provider carrying out a security activity authorised under their license;
  • The observation of a child or other person who cannot give consent that a reasonable person would regard as acceptable (i.e. A family photo of a newborn child);
  • Observations for a scientific, medical or educational purpose; or
  • For the purpose of a business owner protecting their business.

There also exist defences to the proposed crimes. The defendant must prove that they either:

  • Believed on reasonable grounds that the person in question consented, or;
  • That they did not know, or could not have reasonably been expected to know, that the person did not consent.

Your Rights

Assuming the Bill passes, there is a significant impact on your rights, especially the right to privacy. Vitally, the proposed legislation provides a system of restitution for those who had suffered from one of these proposed crimes. This ensures that when your right to privacy is breached in such an abhorrent manner there is a system of redress.
Under the proposed Bill the court is empowered to compel a person found to have committed an offence to take reasonable action to: ‘remove, retract, recover, delete or destroy’ instances of the intimate documents in question. However, enforceability of this seems to be an issue. We await the details to see if provision will be made outlining an effective scheme to enforce such court orders and more effectively protect your right to privacy.

Snedden Hall & Gallop can assist you

This Bill is a promising step in further protecting your rights to privacy in an increasingly invasive age. Snedden Hall & Gallop is well experienced in this complex area of law and has represented many clients seeking to assert their rights to privacy. If you feel as if your privacy has been breached please contact us by email or by phone on (02) 6285 8000.