On 31 August 2018, the Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Act 2018 became law in Australia. The new law, which amends the Enhancing Online Safety Act 2015, prohibits the posting or threatened posting of an intimate image without consent on social media or an electronic or designated internet service.
Known colloquially as Australia's 'revenge porn' legislation, the new law:
* establishes a complaints and objections system for non-consensual sharing of intimate images
* provides that service providers, end-users and host servers may be served with a removal notice requiring them to remove an intimate image from the service
* enforces non-compliance with a removal notice by imposing a civil penalty of 500 penalty units (AUD 105,000)
Amendments to the Criminal Code Act 1995 also introduce a definition of 'private sexual material' and create two new aggravated offences:
1. a standard aggravated offence for or the use of a carriage service to menace, harass or cause offence via transmission, making available, publication, distribution, advertisement or promotion of private sexual material
2. a special aggravated offence if the above offence is committed and three or more civil penalty orders have already been made against the person
Increased penalties will apply to the new offences, and consent must be taken into account when determining offensiveness. These new Criminal Code offences will not apply to a carrier, carriage service provider, internet service provider or internet content host. However, those entities will be required to comply with removal notices and take all reasonable steps to ensure the removal of the intimate image within 48 hours or face a civil fine of AUD 80,595 and potentially receive a formal warning from the eSafety Commissioner.
To comply with these amendments, service providers should respond promptly to any removal notices they receive in relation to intimate images, and closely monitor their websites for potentially criminal or prohibited activity.