The report features 14 recommendations to "protect people from the harms caused by non-consensual sexting" and recognises that "some sexting between young people should not be treated as child pornography".
The Committee was to report on -
(1) the incidence, prevalence and nature of sexting in Victoria;
2) the extent and effectiveness of existing awareness and education about the social and legal effect and ramifications of sexting;
3) the appropriateness and adequacy of existing laws, especially criminal offences and the application of the sex offenders register, that may apply to the practice of sexting, particularly with regard to the creation, possession and transmission of sexually suggestive or explicit messages and images in circumstances where a person: (a) creates, or consents to the creation of, the message or image for his or her own private use and/or the use of one or more other specific persons; or (b) creates, or consents to the creation of, the message or image and without their knowledge and/or their consent the message or image is disseminated more broadly than the person intended.The Committee notes and endorses the Australian Victorian and NSW Law Reform Commission proposals for a tort of privacy (noted in posts in this blog). It comments that
The Committee notes that legislating to provide a cause of action for invasion of privacy is a significant task, and that it would comprise a fundamental change to the Australian legal landscape, with potentially far-reaching effects. Each of the law reform commissions have expended time and resources developing proposals for a privacy cause of action.
While the Committee received limited evidence on broader issues surrounding the introduction of a privacy tort, it did receive evidence about how a privacy tort could assist to protect people who suffer an invasion of privacy from occurrences of sexting. Accordingly, the Committee has limited its consideration to a form of cause of action for invasion of privacy that would adequately protect those who are victims of a sexting-related breach of privacy.
In this context, the Committee believes that the VLRC’s proposal for a cause of action for the offensive misuse of private information strikes an appropriate balance between protecting a person’s privacy, and not unnecessarily constraining freedom of speech. The relevant VLRC recommendations are listed in Appendix Four. The Committee supports the VLRC’s recommendations insofar as they relate to a cause of action for a serious invasion of privacy by misuse of private information.
If implemented, the Committee believes that the VLRC’s proposal would provide an appropriate mechanism for a person to seek civil recourse where they have suffered embarrassment, humiliation or distress because someone else has distributed, or has threatened to distribute, an intimate image of that person.
As this proposed cause of action is fairly limited, the Committee believes that it could be legislated without causing undue repercussions in terms of restricting freedom of speech or impinging unduly on personal freedoms. It could also be legislated immediately, leaving open the possibility of broadening the legislation at a later date to cover a wider range of conduct that could constitute a serious invasion of privacy.
The VLRC recommended that injunctions should be a remedy available where a serious invasion of privacy is established. The VLRC indicated in the report that it was using the term ‘injunction’ broadly to refer to any order of a tribunal or court that compels specified conduct, and stated that this would include injunctions to prevent the initial or ongoing publication of material, and orders to direct a person to apologise for privacy-breaching conduct. The Committee suggests that orders for the delivery up and destruction of material – a remedy that could be of some importance in sexting cases – should also be included within the ambit of injunction orders.The Committee accordingly recommends that
That the Victorian Government consider introducing legislation to create a statutory cause of action for invasion of privacy by the misuse of private information, following recommendations 23, 25, 27, and 29 to 33 of the Victorian Law Reform Commission’s Surveillance in Public Places: Final Report 18 (2010).It goes to comment that
A statutory cause of action for serious invasion of privacy will provide an important mechanism for people to prevent non-consensual sexting, and to send a strong message to the community that non-consensual sexting is not appropriate. However, civil action will not always provide the most effective means to prevent the distribution of intimate images, particularly for young people, who will generally have limited resources and be unable to pursue legal action.
For example, if an intimate photograph of a person was published on a website without the person’s consent, it would be in that person’s interest to have a prompt and efficacious means of removing that material from the website before the images were distributed more widely (through copying and sharing). Ideally, such a mechanism should not be dependent on criminal or civil proceedings, which can be lengthy and, in the case of civil proceedings, expensive for the plaintiff. ....
The Committee believes that there is a gap in existing administrative mechanisms for the resolution of complaints about offensive and harmful online content, and that this gap could be filled by a body empowered to hear and determine such complaints. The Communications Tribunal proposed by the NZLC, if created, would have the jurisdiction to deal with harmful communications matters beyond simply sexting-type images that have been posted to websites. In the Committee’s view, it is logical and appropriate that such a body would be empowered to deal with a range of harmful or offensive digital communications, not just those related to sexting. Accordingly, the question of creating such a body takes the Committee somewhat beyond this Inquiry’s Terms of Reference, as the establishment of such a body should take account of considerations about harmful digital communications more broadly. Nonetheless, the Committee recognises that there is merit to the NZLC’s proposal for a Communications Tribunal. In the Committee’s view, the Victorian Government should give serious consideration to creating a body with similar characteristics to that proposed by the NZLC ....
The Victorian Government could consider creating a stand-alone tribunal to deal with harmful communications, or extend the functions of the VCAT. The VCAT’s stated purpose – to provide Victorians with a “low cost, accessible, efficient and independent tribunal ...” – is consistent with how a proposed body to deal with digital communications complaints should operate. In addition, the VCAT has a number of ‘lists’ which specialise in particular types of cases, such as a Civil Claims List, a Guardianship List, and a Legal Practice List. It would be consistent with the way that VCAT operates to add a specific, specialised “Digital Communications List” to VCAT’s functions.
Recommendation 13: That the Victorian Government consider creating a Digital Communications Tribunal, either as a stand-alone body or as a ‘list’ within the Victorian Civil and Administrative Tribunal, to deal with complaints about harmful digital communications. Development of the Digital Communications Tribunal should be informed by the New Zealand Law Commission’s proposal for a Communications Tribunal.
Finally, the Committee notes that it would be ideal for there to be a national body to deal with and resolve complaints about harmful digital communications, rather than state-based bodies. A national body would provide consistency across the country, make it easier to enforce orders across states and territories, and be likely to gain international recognition and respect from international companies more quickly and easily than a state-based tribunal. The power in the Australian Constitution to legislate with respect to “postal, telegraphic, telephonic, and other like services”would appear to allow the Federal Parliament to create such a tribunal.
The Committee suggests that the Victorian Government need not necessarily wait for the Commonwealth Government to act in this regard, but could proceed to establish a state-based tribunal. Should the state-based tribunal operate successfully, it could provide a model for a national tribunal and would be a compelling precedent in favour of the creation of a national body.
Whether or not the Victorian Government decides to create a state based tribunal, the Committee considers that it would be beneficial to advocate for a Federal Digital Communications Tribunal.The specific recommendations are as follows -
R1: That the Victorian Government periodically commission research to examine qualitative and quantitative aspects of sexting practices by children and adults in Victoria.
R2: That the Government, through the Department of Education & Early Childhood Development (DEECD), ensure all Victorian schools adopt holistic, integrated programs for internet and communications technologies awareness and safety into the school curriculum.
R3: That the Government, through the DDEECD, continue to encourage current and pre-service teachers to take part in professional development programs focusing on cybersafety education.
R4: That the Government ensure that educational and media campaigns directed toward sexting focus on the appropriateness of the behaviour of people who distribute intimate images or media without consent, rather than on the person who initially creates the intimate images or media.
R5: That Victoria Police review its policies to ensure that opportunities are provided for adults charged with offences in relation to sexting-type behaviour, where there is no evidence of exploitative behaviour, to be offered diversion by Police prosecutors.
R6: That the Government introduce legislation to amend each of the child pornography offences in the Crimes Act 1958 (Vic) and the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (Vic) to provide defences to the effect of the following: It is a defence to a prosecution for an offence against subsection (1) to prove that: (a) The film or photograph depicts only the accused person; or (b) That, at the time of making, taking or being given the film or photograph, the accused was not more than 2 years older than the minor was or appeared to be and (i) The film or photograph depicts the accused person engaged in lawful sexual activity; or (ii) The film or photograph depicts the accused person and another person or persons with whom the accused could engage in lawful sexual activity; or (iii) The film or photograph depicts a person with whom the accused could engage in lawful sexual activity, or more than one person, all of whom the accused could engage in lawful sexual activity with.
R7: That at such time as the Victorian Parliament introduces legislation to give effect to R6, the Victorian Government advocate to the Standing Council on Law and Justice that the Commonwealth, States and Territories amend their criminal legislation to provide defences to child pornography offences, consistent with the new Victorian defences.
R8: That following the coming into operation of legislation from R6, Victoria Police and the Victorian Office of Public Prosecutions adopt an express policy that they will not prosecute Commonwealth child pornography offences where an accused person would have a valid defence to child pornography charges under Victorian legislation.
R9: That the Government introduce a specific offence for sexting to the Summary Offences Act 1966 (Vic).
R10: That, if R6 and R9 are not accepted in full, the Government introduce legislation to amend the Sex Offenders Registration Act 2004 (Vic) so that sentencing judges have discretion whether to order that an adult offender convicted of a sexting-related offence be listed on the Sex Offenders Register. .
R11: That, following the coming into operation of legislation from R6, the Government establish a mechanism to review the registration of any person currently listed on the Sex Offenders Register, where that person would have had a defence under legislation introduced in accordance with R6. .
R12: That the Government consider introducing legislation to create a statutory cause of action for invasion of privacy by the misuse of private information, following recommendations 23, 25, 27, and 29 to 33 of the Victorian Law Reform Commission’s Surveillance in Public Places: Final Report 18 (2010).
R13: That the Government consider creating a Digital Communications Tribunal, either as a stand-alone body or as a ‘list’ within the Victorian Civil & Administrative Tribunal, to deal with complaints about harmful digital communications. Development of the Digital Communications Tribunal should be informed by the New Zealand Law Commission’s proposal for a Communications Tribunal.
R14: That the Government advocate that the Standing Council on Law & Justice consider issues surrounding the creation of a national Digital Communications Tribunal.