Cyberspace has regrettably provided a sinister platform for perpetrators to inflict family violence, bullying, and harassment on their victims. In particular, cyberspace has been used by offenders to impose mechanisms of control and/or revenge on spouses or former spouses through the dissemination of intimate and private sexual imagery without their consent. This conduct has been commonly termed, "revenge porn". "Sexting" is the transmission of those types of images using a technological device, such as a mobile phone or computer.
Some State governments have responded to the rising online crisis, with Victoria and South Australia having passed legislation to criminalise the dissemination of intimate, sexual images without the consent of the victim.
At a State level, in late 2014, the Summary Offences Act 1966 (Vic) was amended to insert two new provisions which criminalised the distribution of an intimate image and the threat of doing so. The maximum penalty for distributing an intimate image is two years imprisonment, and the threat of such distribution carries a maximum one year imprisonment term. If the victim is under 18 years of age, and the perpetrator is older than this age, then such conduct is illegal even if the victim consented to its distribution. In this instance, the perpetrator may also be prosecuted for child pornography offences.
However, given that cyberspace extends well beyond State frontiers, it is clear that these laws must also keep pace with the unlimited geographical span of the web to ensure that there is proper protection of victims, and accountability of offenders, on Australian shores — no matter where in Australia such conduct occurs.
Recently, the Federal Government has responded to these calls for a national, uniform approach to tackling the issue of "revenge porn". Following a Senate Inquiry in February 2016 which recommended that "revenge porn" be criminalised at a federal level, the Federal Government has, in May 2017, invited public proposals in relation to the development of appropriate penalties for perpetrators and host websites.
This move coincides with the passage of the Criminal Code Amendment (Protecting Minors Online) Bill 2017 which passed both houses of Federal Parliament in June 2017. The Bill, which amends the Commonwealth's Criminal Code Act 1995, makes it an offence for an adult to use a 'carriage service' to "prepare or plan to cause harm to, procure, or engage in sexual activity with, a person under the age of 16 (a child)".1 A carriage service encompasses the use of cyberspace.
The Explanatory Memorandum confirms that such 'preparation' or 'planning' can involve an adult misleading a child about their age. Under the new law, law enforcement agencies can intervene to protect children from online perpetrators before any sexual activity or other harm occurs.
Such legislation is a welcome recognition of the challenges faced by children and parents in the cyber age. It is hoped that the introduction of a federal framework to combat the dissemination of intimate images without the consent of the victim can give added, uniform protection from the malevolent use of the online world.