Revenge Porn

The NSW Government has announced that it will seek to criminalise 'revenge porn' (ie the distribution of intimate or sexually explicit images without consent).

The media release, which embodies the Government's rather weak response to the privacy inquiry by the Legislative Council Committee on Law and Justice, features the comment by Attorney-General Upton that

distributing intimate images without consent often involves ex-partners seeking revenge and is particularly troubling in domestic violence situations, where a victim may be forced to participate in the production of explicit images. 

It goes on to state

“‘These images can have a devastating emotional and social effect on the person pictured and can be used as a way to deliberately humiliate, control or harass the intended victim,” Ms Upton said.

“No one has the right to share explicit photos without consent, and new laws will protect people and make it clear this kind of behaviour is totally unacceptable.

”The use of mobile phones as recording devices has made it easier for people to share intimate images without consent on social media or websites, causing great distress for victims, and we need strong laws to protect them.”

The decision reflects the NSW Government’s recognition of concerns about privacy recently expressed by the Legislative Council Committee on Law and Justice and is part of the Government’s response to the Committee’s report on remedies for serious invasions of privacy, which will be tabled today.

Only Victoria and South Australia make distributing intimate and sexually explicit images without consent a criminal offence. In Victoria the offence carries a penalty of up to two years in prison, while in South Australia the maximum penalty is $10,000 or two years in jail.

Consultation will start soon on a range of issues, including the definition of “intimate” images, how they are shared or distributed, and what penalties should apply, including how the offence should apply to children and young people.

Sexting

In South Australia the Summary Offences (Filming and Sexting Offences) Amendment Bill 2016 (SA), to amend the Summary Offences Act 1953 (SA) has had its second reading.

The proposed section 26DA, regarding a Threat to distribute invasive image or image obtained from indecent filming, provides

 (1) A person who— (a) threatens to distribute an invasive image of a person; and (b) intends to arouse a fear that the threat will be, or is likely to be, carried out, or is recklessly indifferent as to whether such a fear is aroused, is guilty of an offence. Maximum penalty: (a) if the invasive image is of a minor—$10 000 or imprisonment for 2 years; (b) in any other case—$5 000 or imprisonment for 1 year.

(2) A person who— (a) threatens to distribute an image obtained by the indecent filming of a person; and (b) intends to arouse a fear that the threat will be, or is likely to be, carried out, or is recklessly indifferent as to whether such a fear is aroused, is guilty of an offence. Maximum penalty: (a) if the person filmed was a minor—$10 000 or imprisonment for 2 years; (b) in any other case—$5 000 or imprisonment for 1 year.

(3) It is a defence to a charge of an offence against subsection (1) or (2) to prove— (a) that— (i) the person filmed consented to that particular distribution of the image the subject of the filming; or (ii) the person consented to distribution of the image the subject of the filming generally; and (b) that the person had not, at the time of the alleged offence, withdrawn consent to the distribution of the image.

(4) This section applies to a threat directly or indirectly communicated by words (written or spoken) or by conduct, or partially by words and partially by conduct, and may be explicit or implicit.

Section 26C, regarding Distribution of invasive image is to be amended

26C(1) Maximum penalty: (a) if the invasive image is of a minor—$20 000 or imprisonment for 4 years; (b) in any other case—$10 000 or imprisonment for 2 years.

e-Safety Commissioner

The Australian Government has released a discussion paper [PDF] regarding a Enhancing Online Safety for Children: Public consultation on Key Election Commitments as part of the 'Policy to Enhance Online Safety for Children' that encompasses establishment of a Children's e-Safety Commissioner, development of "an effective complaints system, backed by legislation, to get harmful material down fast from large social media sites" and examination of "existing Commonwealth legislation to determine whether to create a new, simplified cyber-bullying offence".

The document is probable because it under-recognises the resilience of children (not all of whom are wrapped in cotton wool), fails to recognise concerns regarding treatment of all "cyberbullying" as equally serious, and sidesteps any evaluation of the effectiveness of existing programs. Such an evaluation would be useful, given questions about the effectiveness of particular initiatives over the past decade, especially those that were inspired to appease certain constituencies.

The paper follows calls in the Victorian Law Reform Committee report on sexting noted here.

In discussing the mooted e-Safety body the paper states that

As part of the election campaign in September 2013, the Government committed to appoint a senior Commonwealth official as a Children’s e-Safety Commissioner (the Commissioner), supported by existing resources re allocated from existing locations within the public service. The Commissioner will be a single point of contact for online safety issues for industry, Australian children and those charged with their welfare. The Commissioner will also take the lead across government in implementing policies to improve the safety of children online. The need for an accessible and centralised point of contact to deal with online safety has been recognised by policy makers in a range of contexts. For example, on 5 November 2013 the New Zealand Government introduced the Harmful Digital Communications Bill, which proposed the appointment of an Approved Agency under a new civil enforcement regime to handle complaints about harmful digital communications and assist in dispute resolution. The Victorian Law Reform Committee also recommended the establishment of a Digital Communications Tribunal.

Functions of the Commissioner

The Government’s election policy commitments indicate that the Commissioner will have responsibility for the following:

• implementing the proposed scheme for the rapid removal of material that is harmful to a child from large social media sites; 

• working with industry to ensure that better options for smartphones and other devices and internet access services are available for parents to protect children from harmful content; 

• establishing an advice platform with guidelines for parents about the appropriateness of media content; 

• establishing a research fund to consider the effects of internet use on children, how support services can be provided online and how to mitigate children’s online risks; 

• establishing a voluntary process for the certification of online safety programmes offered within schools; and 

• establishing a funding programme for schools to deliver online safety education.

In addition to the functions outlined above, there are a range of existing Australian Government online safety resources and programmes which could be transferred to the Commissioner’s control. ... 

The clear policy intent of the Government is to have a single organisation which takes the lead in relation to online safety for children, allowing for greater efficiency and addressing duplication and overlap. There may, however, be some offsetting considerations in weighing up which programmes should be transferred to the Commissioner’s control. For instance, while some resources and research projects specifically target online safety for children (such as the Cybersafety Help Button and Australian Children’s Cybersafety and E-security Project), other resources are intended for improving the online safety of people of all ages and therefore may not be suited to a Children’s e-Safety Commissioner. For example, the Australian Federal Police’s (AFP) ThinkUKnow programme involves the delivery of public safety messages to students, teachers and parents, which are bolstered by the law enforcement role that the AFP has within the community. The ‘Report Abuse’ function of the ThinkUKnow programme is used to report online grooming behaviour. Consideration should be given to whether the ‘Report Abuse’ function should also remain with a law enforcement body. 

In cases where any agencies retain their online safety programmes, the Commissioner would be expected to establish strong working relationships to ensure consistent messaging in online safety initiatives, and to avoid duplication with the delivery of other online safety programmes.

They would say that, wouldn't they … cooperation in a positive and forward looking way, no duplication, happy surrender of resources (at a time of ongoing budget cuts) "re allocated" from "existing locations".

The next page features the usual motherhood statements -

A range of options are available for establishing the Commissioner. Best practice principles for establishing a new government position are outlined in the Governance Arrangements for Australian Government Bodies published by the Department of Finance, which include some of the following key principles:

• There should be no unnecessary proliferation of government bodies, therefore a new function, activity or power should be conferred on an existing body, unless there is a persuasive case to form a new body. 

• Existing governance structures allow for well-understood lines of responsibility to operate, including the clear application of other accountability laws and processes. 

• A departmental status works well for functions of government that require close ministerial involvement, direction and responsibility. 

• Additional set-up and ongoing administrative costs for the body should be minimised to reduce demands placed on public sector resources. 

• A balance needs to be struck between establishing a body’s independence while at the same time still enabling government to govern efficiently.

It is a key objective that the Commissioner will maintain a high public profile to provide visible leadership on enhancing online safety for children.

Visible leadership is especially important in the lead-up to an election and the annual budget wars between competing agencies.

The paper identifies four options for creation of the Commissioner -

1 – establishment of an independent statutory authority 

This option would see the creation of a new independent statutory authority, separately staffed and resourced to support the Commissioner and its functions. While this option would provide the greatest level of independence for the Commissioner to carry out his/her functions, it is also the most costly option. 

2 – establishment of an independent statutory office, with administrative support from an existing government agency 

This option would establish a Commissioner as an independent office, and provide that office with administrative support from an existing government agency (an approach recently taken by the Australian Energy Regulator, which was established as an independent Statutory Board with administrative resources sourced from the Australian Competition and Consumer Commission). Administrative support could be provided by the ACMA, with relevant existing ACMA powers delegated and resources transferred to the Commissioner. Alternatively, administrative support could be provided by the Department of Communications. This would provide some synergies in policy development activities between the Commissioner and the Department, but may give the impression that the Commissioner is not sufficiently independent from government. 

3 – designation of a Member of the ACMA as the Commissioner 

This option would involve appointing an existing member of the ACMA Board to be the Commissioner, with legislative amendments to the Australian Communications and Media Authority Act 2005 to permanently place the role of the Commissioner within the ACMA Board, with distinct functions and powers to achieve the Commissioner’s intended purpose. One benefit of this approach is that it would be possible to temporarily appoint an ACMA Member to act as the Commissioner while legislative arrangements are established for the permanent Commissioner and his/her functions (including legislation for the proposed scheme for rapid removal of material that is harmful to a child from social media sites – see Chapter 2). Having interim arrangements would enable a more rapid transition to the new arrangements, as the interim Commissioner could be closely involved in setting up the legislative arrangements for the new Commissioner. A variant of this option would see the appointment of an Associate Member of the ACMA as the Commissioner, with distinct functions and powers to achieve the Commissioner’s intended purpose. An advantage of this variant is that the appointment could be made without legislative amendment to the ACMA Act. 

4 – designation of a non-government organisation with expertise in online child safety 

This option would involve establishing a legislated framework for appointing an expert non-government organisation (NGO) to undertake the role of the Commissioner. The NGO would be selected on a competitive basis and would operate under contractual arrangements with government. The contract would set out the quantity and quality of outputs the selected NGO would deliver. This option is similar to an approach being proposed in New Zealand under the new Harmful Digital Communications Bill. The key advantage of this option would be the greater flexibility that NGOs have in terms of their:

• operating cost structure; 

• capacity to work with industry, including generating additional income; and 

• capacity to work with state and territory agencies, including law enforcement and education agencies.

A potential disadvantage may be limits on the range of ‘enforcement’ functions that an NGO is allowed to take on. This may require the selected NGO to work closely with local police.

Sexting

The Victorian Government has released its brief response [PDF] to the state parliament's report on sexting noted earlier this year.

Unsurprisingly the Government rejected Recommendation 12, ie that

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 similarly has not embraced Recommendation 13 regarding establishment of a Digital Communications Tribunal (as a stand-alone body or as a ‘list’ within the Victorian Civil & Administrative Tribunal) to deal with complaints about harmful digital communications.

The specific responses to the other recommendations are as follows -

R1  -  research to examine qualitative and quantitative aspects of sexting practices by children and adults in Victoria.

• recommendation accepted in principle, with research to be undertaken by Australian Institute of Criminology

R2 -  Victorian schools to adopt holistic, integrated programs for internet and communications technologies awareness and safety

•  development of 'resilience framework' etc underway

R3 -  encouragement of current and pre-service teachers to take part in professional development programs focusing on cybersafety education.

• work underway

R4 - 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.

• work underway

R5 - review by Victoria Police of diversion policies for adults charged with offences in relation to exploitative sexting-type behaviour.

•  review to be undertaken

R6 -  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).

•  legislation to be introduced (reportedly with a Bill being introduced before Christmas 2013)

R7 - the Government advocate that the Commonwealth, States and Territories amend their criminal legislation to provide defences to child pornography offences, consistent with the new Victorian defences. 

• advocacy to be undertaken

R8 - adoption of an express policy to not prosecute Commonwealth child pornography offences where an accused person would have a valid defence to child pornography charges under Victorian legislation.

• investigation to be undertaken

R9 - introduction of a specific offence for sexting to the Summary Offences Act 1966 (Vic).

• recommendation accepted, with legislation to be introduced

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.

• NA, given acceptance of R6 and R9

R11 - establishment of 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.

• review to be undertaken

From a privacy (and personality rights) perspective the most interesting point is the response to R9, with establishment of an offence potentially acting as a deterrent for invasions of privacy in the form of nonconsensual sexting.

Sexting

The brief report of the Senate Select Committee on Cyber Safety - Options for addressing the issue of sexting by minors states that

The evidence provided to the committee during this inquiry indicates that sexting has become a regular activity for many minors (young people aged under 18 years). The emergence of new technologies has facilitated the creation and transmission of sexual content through electronic media. 

Much of this activity takes place between consenting young people and is therefore relatively benign. However, in some instances, sexting activities are coercive, exploitative or undertaken with malicious intent. It was argued by many submitters that the current legislative framework requires review to ensure that consensual sexting is not captured by those laws targeting child pornography. Evidence was also received which supported the introduction of changes to effectively address non-consensual sexting. 

The committee considers that the evidence it received demonstrated the serious and complex nature of sexting by minors. However, given the short timeframe in which it has had to undertake this inquiry, the committee was unable to fully explore all the issues raised in the evidence. In particular, the committee considers that the suggestions made in relation to changes to Commonwealth laws including amendments to the child pornography laws and the introduction of a new offence for non-consensual sexting require further, in-depth consideration. 

In addition, some submitters called for the creation of a national digital communications tribunal. The committee considers that further work is necessary to determine whether such a body could effectively provide access to remedies other than those that are already available under the current regulatory framework. 

The committee therefore considers that an inquiry into options for addressing the issue of sexting by minors be re-referred by the Senate in the 44th Parliament in order to investigate and deliberate further on the matters raised in evidence.

The report quotes a submission by Bruce Arnold and Benjamin Smith.

Overexposed

'Exposed' by Derek Bambauer in (2014) 98 Minnesota Law Review argues

The production of intimate media – amateur, sexually explicit photos and videos – by consenting partners creates social value that warrants increased copyright protection. The unauthorized distribution of these media, such as via revenge porn, threatens to chill their output. To date, scholarly attention to this problem has focused overwhelmingly on privacy and criminal law as responses, neglecting the power of intellectual property doctrine to curtail harms and spur beneficial uses. Copyright law leverages an established, carefully limited system of intermediary liability that addresses the true risks of abuses, such as revenge porn. Importantly, copyright is also consonant with key statutory protections, such as Section 230 of the Communications Decency Act, that protect the thriving Internet ecosystem.

This Article proposes creating within the Copyright Act a right for identifiable people captured in intimate media to block unauthorized distribution and display of those images or video. It then uses the proposal, and issues for intimate media more broadly, as a window into contentious scholarly debates over the nature of authorship and the balance between copyright and free speech. The Article closes by identifying the rise of intimate media and its concomitant challenges as part of the ongoing revolution in information production.

Bambauer comments that -

Privacy law dominates discussions around the production and misuse of intimate media. Intuitively, privacy doctrine has considerable appeal: there is something sordid and voyeuristic about the unauthorized viewing of people captured in intimate, vulnerable moments. However, privacy-based approaches share common failings, one theoretical and two practical.

The theoretical failing of privacy law’s framework is that it does not take seriously the benefits of intimate media. Privacy, on this issue, is entirely about preventing harm to victims of unauthorized sharing. That impulse is admirable, but it ignores another valuable consideration: structuring a legal regime to encourage the production and sharing of intimate media among consenting partners. The virtue of this Article’s approach is that it addresses both: it creates a generative regime for intimate media, while reducing harm by punishing it as copyright infringement. And, copyright law operates in practice like a privacy regime more often than either privacy or IP scholars might like to admit. Howard Hughes bought the copyright of a critical biography so that he might suppress it. J.D. Salinger used copyright to quash quotations from his papers. Hulk Hogan sued to stifle his sex tape. In some contexts, copyright law can replace privacy law. It should do so here, since it addresses both the virtues and demerits of intimate media.

The first practical hurdle for privacy doctrine is the immunity conferred by Section 230 on intermediaries. While the initial revelation of intimate media likely causes some harm, the greater harm comes from the public availability and ongoing sharing of these media. Privacy laws, with the important exception of federal criminal ones, do not apply secondarily to Web sites, search engines, or other intermediaries. Privacy scholars typically respond by seeking to circumvent Section 230, or by seeking to change it. Circumvention exists, but is rare. While there are cases successfully bypassing immunity based on privacy claims – typically, on the theory developed by the Ninth Circuit that the Web site has contributed to the development of the content – they are the exceptions that prove the rule. Alteration or repeal of Section 230 is a hardy perennial of privacy scholars and of state legislators. Thus far, efforts to alter the 230 safe harbor have proved politically non-viable, and if successful, would clearly come at some costs to intermediaries and innovation. Section 230 is a barrier, but it is one worth keeping.

The second practical failing is that, even if Section 230 were modified, privacy law may not be able to hold intermediaries liable for nonconsensual distribution of intimate media without running afoul of the First Amendment. The First Amendment generally protects expression against government efforts to ban re-distribution of it, unless that expression falls outside the category of “speech.” For example, a radio station that broadcasts an illegally wiretapped conversation may not be held liable, even though the person who initially taped the content could be prosecuted, and even when the radio station knew the taping was unlawful. A newspaper that publishes the name of a minor who was raped cannot be subject to damages under a shield law forbidding publication of the identities of victims of sexual offenses. A media outlet that identifies, in contravention of the law, a minor charged with murder cannot be prosecuted. The trend line is clear: those who disclose initially can be held liable, but intermediaries who re-publish cannot. This is a significant – if not insurmountable – hurdle for privacy law to overcome. While appealing at first blush, privacy law not only faces doctrinal challenges to achieving its ends, but those ends are insufficient: they fail to take account of the benefits of consensual sharing of intimate media.

Bambauer concludes 

Blame smartphones.

Whether Apple, Android, or Windows, smartphones today share two key traits: they have cameras, and they are networked. These characteristics explain the rise of amateur-generated intimate media, and of its non-consensual distribution. The costs of production and distribution of this type of information – as with everything digital – have plummeted. Creating an explicit photo can be done easily, impulsively. And the device that snaps the photo can share it as well. The cost of distributing analog photos was an effective barrier to most non-consensual sharing; it was simply too much work. Even digital cameras required a USB cable, a computer, and a separate Internet connection before media could be distributed via the Internet. But, as sexting proves, the smartphone has made intimate media ubiquitous.

Yet this Article comes to praise this change, not to bury it. Intimate media generate significant, important benefits for partners who use such images and video consensually. Recognizing that value is the key insight into why intellectual property law is best suited to tackle the challenges raised by non-consensual distribution. Creating a right for identifiable subjects of intimate media to block unconsented sharing and display effectively curbs infringement, empowers people, creates incentives for production, and avoids disturbing both the First Amendment and settled Internet law. Ultimately, this Article’s reform to copyright law enhances autonomy and generativity – it enables us to meaningfully choose to whom we are exposed.

Sexting and the Privacy Tort

The Victorian Parliament's Law Reform Committee has released the report of its inquiry into sexting.

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.

Sexting

Catching up with Young People and Sexting in Australia: ethics, representation and the law by Kath Albury, Kate Crawford, Paul Byron & Ben Mathews,  a study released earlier this month.

As noted in the past, Albury's sensible, coherent and well-research work is credible and worthy of attention.

The new study [PDF] presents

the findings of a qualitative study of young people’s understandings of, and responses to, current Australian laws, media and educational resources that address sexting. While there are many definitions of sexting, for the purposes of this report we are referring to the production and distribution of naked or semi-naked photographs via mobile phones and social media.

The project involved a review of both international local and academic research as well as popular media addressing sexting, and a review of educational resources for young people. Three focus groups were conducted with young people aged 16 and 17 in 2012, and a working paper based on those findings was then distributed to adult stakeholders in the fields of law enforcement, youth and children’s legal support, education, criminology, media and communications, youth work, youth health care, counseling and youth health promotion. This report therefore draws on both the focus group discussions, and a workshop consultation with the adult stakeholder group.

The authors indicate that -

• While focus group participants were familiar with the practice of sending naked or semi-naked pictures, the term sexting was understood as an adult or media-generated concept that did not adequately reflect young people’s everyday practices and experiences of creating and sharing digital images.

• Young people observed that gendered double-standards were applied to discussions of sexting, and digital self-representation in general. For example one group of young women were particularly offended that their self-portraits or selfies were viewed by both peers and adults as ‘provocative’ while young men’s naked or semi-naked pictures were understood as ‘jokes’.

• Sample media campaigns and public education materials viewed by focus groups were rejected by some participants for failing to acknowledge young women’s capacity for consensual production and exchange of images. These participants also felt that current sexting education fails to emphasise young people’s responsibility to not share images without consent.

• Both young people and adult stakeholders agreed that current legal frameworks relating to sexting (particularly those that con$ate sexting with child pornography) are not widely understood by either young people or adults, and that this lack of education and awareness places young people at risk of unreasonable criminal charges.

The recommendations are structured two major categories -  1) strategies and 2) new approaches to understanding sexting. The authors indicate that

•  1.1 We recommend that educators, policy makers and legislators consider context-specific and age-appropriate legal/educational approaches for young people in different age-groups. Educators and legislators should particularly address the specific needs of those under 18, yet over the age of consent (i.e. young people aged 16-17). 

• 1.2 We recommend the inclusion of young people on committees, review boards and other policymaking groups, so that their experiences can inform future frameworks for understanding and responding to sexting. We recommend the inclusion of young people on committees, review boards and other policymaking groups, so that their experiences can inform future frameworks for understanding and responding to sexting. 

• 1.3 We recommend that both educational and legal responses to sexting reflect ‘harm reduction’ principles rather than promoting abstinence from the production and exchange of digital photos between peers or from using social media. 

• 1.4 We recommend that sexting education be more focused on fostering ethical, respectful practices between intimate partners and within friendship networks. 

• 1.5 We recommend legislative reform to clarify the application of existing laws relating to child pornography and child exploitation material (as they are applied to sexting), and to clarify the parameters of lawful conduct by and between consenting children and young people. 

• 1.6 We recommend that educational strategies that address sexting, including information resources for adults, seek to problematise and challenge gendered double-standards in relation to concepts such as ‘provocativeness’, ‘self-confidence’, ‘responsibility’, ‘consequences’ and ‘reputation’. 

• 1.7 We recommend that educational strategies that address sexting, including information resources for adults, acknowledge young people’s rights and responsibilities with regard to self-representation and sexual expression. 

• 1.8 We recommend that educational strategies that address sexting, including information resources for adults, distinguish between non-consensual production and distribution of sexting images and consensual image sharing. 

• 1.9 These educational strategies should emphasise ethical frameworks, and recognise that sexting can be an expression of intimacy, rather than shaming young people for sexting. Framing sexual expression only as a risk does little to alleviate anxieties or feelings of shame that young people may experience in relation to their sexualities.

Sexting

The Victorian Parliament's Law Reform Committee has called for submissions for its Inquiry into Sexting.

The Inquiry terms of reference define sexting as “the creating, sharing, sending or posting of sexually explicit messages or images via the internet, mobile phones or other electronic devices by people, especially young people”.

The Committee is to examine -

the creating, sharing, sending or posting of sexually explicit messages or images via the internet, mobile phones or other electronic devices by people, especially young people, (known as 'sexting') .... and report no later than 30 June 2012, including:

• the incidence, prevalence and nature of sexting in Victoria;  

• the extent and effectiveness of existing awareness and education about the social and legal effect and ramifications of sexting; 

• 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:

• 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
• 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 Inquiry, rolled over from last year, coincides with tabling last month of a report by the Victorian Law Reform Commission that called for the removal of the state's sex offender register (and by extension from nationally accessible criminal databases) of young people listed for sexting offences.

The Law Reform Commission recommended establishment of a specialist panel to review the circumstances of over 4000 Victorians registered as sex offenders under the Sex Offenders Registration Act 2004 (Vic) and "remove people from the register who do not present a risk", thereby ensuring that the state registration scheme applies only to those offenders who posed a genuine risk of sexually abusing children. Acting Law Reform Commission chairman David Jones commented that although it was unusual for the consequences of criminal proceedings to be revisited, in the interests of fairness the government needed to do so in these cases. That comment was endorsed by Police Chief Commissioner Ken Lay, who referred to police struggling to manage the register, and reflected submissions by a range of bodies noted in chapter 5 of the report.

Last year the Commission commented that -

The sex offenders register, maintained by Victoria Police, contains the details of individuals convicted of nominated sexual offences. The registration scheme aims to ensure police remain informed of the whereabouts and personal details of sex offenders. The scheme also aims to prevent registered sex offenders working with children.

There are Victorian and Commonwealth legislative prohibitions on sexting where minors are involved – where the image depicts a person engaging in sexual activity who is under the age of 18 or who appears to be under the age of 18. Sentencing for these offences can result in inclusion on the sex offenders register.

Sexting where images are forwarded via mobile phone, particularly without the consent of a party to the image, poses serious privacy issues. Concern has focused on some of the longer-term consequences for people who engage in sexting – with the risk that permanent digital images could be distributed through social media and on the internet.

Commentators have pointed to a lack of understanding of the law among young people, and the potential consequences if they are convicted of serious sexual offences in relation to sexting and placed on the sex offenders register.

The pervasive use of mobile phones, many including high definition photo and video cameras, means technology and practices among some segments of the population may have outpaced legislative regimes.

Sexting involving minors raises particularly difficult legal and policy questions. The conduct can range from the unwise but relatively harmless, where it may be between consenting teenagers, to the more insidious and predatory, including where images can fall into the hands of repeat child sex offenders. The evident difficulties distinguishing in law between these types of conduct, with the broad range of behaviours in between, will arguably continue to be a challenge for policymakers both here and in other jurisdictions.

Cyberdanger

Protecting Children Online: Teachers' perspectives on eSafety [PDF] by Helen Aston & Bernadetta Brzyska offers an analysis of responses in a UK online teacher survey covering 'e-safety', cyberbullying, pupil use of mobile phones and social networking.

The authors of the 65 page report indicate that -

• 87% of teachers feel pupils are e-safe at school although only 58% think their pupils "have the knowledge and skills to stay e-safe at home"
• 74% of teachers think that the prevalence of smart phones among their pupils is making it easier for them to access inappropriate material at school, with "nine out of 10 secondary school teachers finding this difficult to manage"
• cyberbullying continues to be a problem, with 91% of secondary teachers and 52% cent of primary teachers saying pupils at their school have experienced cyberbullying, and that most of it is perpetrated via social networking sites.

The report is largely self-congratulatory and conflates the existence of policies with the minimisation of substantive harms, identifying teacher confidence rather than effectiveness. It claims that "the survey data shows that the majority of teachers can confidently deal with most e-safety issues and support their pupils to do so". Indeed. As with the rather vacuous ACER report noted earlier this year I'd have liked less recitation of self-reporting and more analytical bite.

The UK report comments that -

Many teachers acknowledged that technology can be useful to their pupils, for example they felt mobile phones are good for emergencies and social networking sites can facilitate pupils’ communication with their friends. However, our findings also show that technology is creating challenges for teachers. This is in relation to issues around e-safety and cyberbullying as well as managing pupils' usage of particular technologies, such as smartphones and social networking sites.

Given the pace at which new technologies are being developed, and pupils’ enthusiasm for using new technologies, having a regularly updated e-safety policy that provides a clear framework for guiding and managing pupils’ use of technology is important. Nearly nine in ten (87%) teachers said that their school has an e-safety policy, but only seven in ten (72%) indicated that it is reviewed regularly, suggesting that more work needs to be done with schools in this area. This is particularly the case in secondary schools, where the proportion of teachers responding that their school has an e-safety policy was lower.

Encouragingly, the vast majority of teachers felt that their pupils have the skills and knowledge to use the internet safely at school. However, only three-fifths (58%) of teachers felt that pupils had the skills and knowledge of use the internet safely at home.

This suggests that pupils need more education and support to ensure that they use the
internet safely outside of school, where there is less supervision and potentially more online freedom. Communication with teachers and parents about how best to support this learning would be useful.

Over three-quarters (77%) of primary teachers and half (54%) of secondary teachers felt that staff had received adequate e-safety training. Indeed, most teachers felt confident about advising pupils on different aspects of e-safety. The safe use of social networking sites was the area of e-safety that proportionally fewest teachers were confident to advise pupils on. These findings imply that a significant minority of teachers, particularly within the secondary phase of education, want or need more training on e-safety. We would expect this to result in greater proportions of teachers feeling confident in giving advice to pupils on all facets on e-safety.

Given the growing ownership of smartphones, Vital were keen for the survey to investigate teachers’ views of mobile phones. 85% of secondary teachers said that many of their pupils carried mobile phones with internet access, compared with only 7% of primary teachers. Given this variation by phase, it is unsurprising that while secondary teachers were proportionally more likely than primary teachers to see the benefit of pupils having a mobile phone for emergencies, they were also much more inclined to agree that mobile phone use within school is problematic. More than nine in ten secondary teachers thought that controlling mobile phone use within school was difficult. This suggests that secondary teachers would particularly welcome advice on managing pupils’ use of mobile phones within school.

Many teachers (59%) have a social networking profile themselves, and less than 1% have experienced pupils leaving inappropriate comments on their profile. Teachers do not encourage pupils to contact them via social networking sites, with only 1% happy for their pupils to contact them in this way. A third (33%) of primary teachers and three quarters (78 %) of secondary teachers felt that many of their pupils spend too much time on such sites. Across both phases of education, most teachers felt that access to these sites should be banned during the school day. Teachers are therefore likely to find advice on how to manage pupils’ attraction to social networking sites useful and relevant.

The survey findings on cyberbullying give a clear indication that communication with teachers should focus on both bullying of teachers and pupils, particularly in the secondary phase on education. While only 3% of teachers said that they had been cyberbullied by pupils, a third of secondary and 7% of primary respondents said that one of their colleagues had been. The picture amongst pupils was markedly worse, with 91% of secondary teachers and 52% of primary teachers reporting that pupils at their school have experienced cyberbullying. By far the most common form of cyberbullying was via social networking sites, irrespective of whether teachers or pupils were the intended victims, suggesting that cyberbullying advice should explicitly consider the use of this technology.

Offender Registration

The Victorian Law Reform Commission has released the 26 public submissions received in response to its 48 page Sex Offenders Registration: Information Paper [PDF] as part of its review regarding the registration of sex offenders. The Commission is due to deliver its final report to the Attorney-General on 4 November 2011.

The consultation exercise is on interest in relation to current debate about the state's Charter of Human Rights & Responsibilities, the management of serious offenders and the long-term criminalisation of sexting by minors.

The Paper for example noted that -

The Sex Offenders Registration Act imposes limits upon three rights recognised and protected by the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter). They are:

• the right to move freely within Victoria, enter and leave it, and choose where to live
• the right of every person not to have their privacy, family, home or correspondence arbitrarily
or unlawfully interfered with or their reputation unlawfully attacked
• the right to freedom of association with others.

The Charter permits limitations of rights that are reasonable and proportionate.4 One of the matters that may be considered when determining whether limits placed on a person’s rights are reasonable and proportionate is the rights of others. The Charter recognises the right of children to protection that is in their best interests and which they require as children.

The Commission commented that -

The Sex Offenders Registration Act establishes a mandatory and universal registration scheme that seeks to monitor the activities of child sex offenders when they return to the community after completing their sentences. The scheme is universal in two respects: it applies to all people convicted of sexual offences involving children and the same reporting requirements apply to all registered sex offenders. It applies to a very broad range of offences.

The courts do not have the power to determine which convicted sex offenders require monitoring or to devise individualised reporting requirements that seek to monitor the activities of a particular offender. Research indicates, however, that sex offenders do not re-offend more often than other serious offenders and that there are identifiable characteristics of 'high risk' offenders that could possibly be useful predictors of recidivism. The Commission will investigate whether some form of individualised judicial decision making about both inclusion in the Register and the content of reporting obligations is desirable.

The universal operation of the scheme has caused the Sex Offenders Register to grow very quickly, with more than 20,000 registrants anticipated in the first 30 years of the scheme.

The Paper asked -

Purposes

1. To what extent does the Sex Offenders Registration Act fulfil its stated purposes?

2. Should the Sex Offenders Register be a primary source of information to the Department of Human Services about child protection concerns?

3. Does the Sex Offenders Registration Act establish an effective scheme for monitoring the activities of convicted child sex offenders who are likely to re-offend?

Inclusion in the Sex Offenders Register

4. Should inclusion in the Sex Offenders Register be an automatic administrative consequence of a person being convicted of and sentenced for a Class 1 or Class 2 offence?

5. Should the court have a discretionary power to decide whether to order that a person who is convicted of some or all of the Class 1 or Class 2 offences be placed in the Sex Offenders Register?

What criteria should govern the exercise of any discretionary power?

6. Should an order placing a person in the Sex Offenders Register be a matter that the court can take into account when sentencing a person for a Class 1 or Class 2 offence?

7. Should it continue to be possible for a court to order that a person convicted of any offence be placed in the Sex Offenders Register if the court is satisfied that the offender poses a risk to the sexual safety of any other person?

Duration of reporting obligations

8. Should the duration of a registered sex offender’s reporting obligations continue to be automatically determined by a legislative classification of offences?

9. Should the court have a discretionary power to determine the length of the reporting period? What criteria should govern the exercise of any discretionary power?

10. Are the current provisions in the Sex Offenders Registration Act for suspending the reporting obligations of sex offenders adequate?

11. Should the Chief Commissioner of Police or some other statutory official have the power to apply to a court for an order extending a registered sex offender’s reporting obligations?

Content of reports

12. Should all registered sex offenders continue to have the same reporting obligations that are automatically determined by the legislation?

13. Should the court have a discretionary power to determine the content of a registered sex offender’s reporting obligations? What criteria should govern the exercise of any discretionary power?

14. Should the Chief Commissioner of Police have additional powers which would permit police officers to test the truth of any report provided by a registered sex offender? If yes, what should those powers be and in what circumstances should they be available?

Management, use and disclosure of information in the Register

15. Should the Chief Commissioner of Police have an express power to give some or all information in the Sex Offenders Register to CrimTrac for national law enforcement purposes?

16. Should the Chief Commissioner of Police have an express power to give some or all information in the Sex Offenders Register to the Secretary of the Department of Human Services for child protection purposes?

17. Should the Chief Commissioner of Police have an express power to give some or all information in the Sex Offenders Register to any other public body or official for any other purpose?

18. Should registered offenders continue to be required to report ‘unsupervised contact’ with a child? If so, should the legislation contain guidance about what is meant by this term? Should registered sex offenders be required to report 'unsupervised contact' with a child before it occurs rather than after it has occurred? If reporting were required in advance of contact, should it be before the first contact, a subsequent contact, or at any other point in time?

Protections for registered sex offenders

19. Are there adequate protections for registered sex offenders in the Act?

Accountability and review

20. Are the current accountability and review mechanisms in the Act adequate?

Management of other information about registered offenders

21. Should other government agencies be required or permitted by legislation to give the Chief Commissioner of Police information about a registered sex offender for inclusion in the Sex Offenders Register? If so, what type of information?

22. Should Corrections Victoria be required or permitted by legislation to give the Secretary of the Department of Human Services information about a sex offender that is acquired during any treatment programs undertaken by the offender when in custody or on parole?

The Paper noted that mandatory reporting by registered offenders includes the following information -

• name(s) by which they are known
• any other name(s) by which they have been known in the past, and the period for which they were known by that name
• date of birth
• address of each place they reside for at least 14 days (whether consecutive or not) in any 12 month period or, if homeless, the localities in which they can generally be found
• telephone number
• email address
• name and business address of internet service provider
• internet, instant messaging, chat room or other user names or identities used through the internet or other electronic communication services
• names and ages of any children with whom they usually live or have unsupervised contact for at least three days (whether consecutive or not) in any 12 month period
• employment details, including work under an employment contract, as a self-employed person or sub-contractor, any practical training as part of an educational or vocational course, or work as a volunteer or for a religious organisation, for at least 14 days (whether consecutive or not) in any 12 month period
• details of affiliations with any clubs or organisations that have child membership or child participation in their activities
• details of any motor vehicle they own or drive on at least 14 days (whether consecutive or not) in any 12 month period
• details of any existing or former tattoos or permanent distinguishing marks
• details of any requirement to register and report under corresponding sex offender legislation
• details of any periods of government custody since they were either sentenced or released from custody for the registrable offence
• if they travel interstate at least once a month on average, or plan to do so, the reason, frequency and destinations of the travel
• passport number and country of issue of each passport held.

In a cogent submission the Office of the Privacy Commissioner, the state agency that's more engaged than its national counterpart, highlighted several concerns regarding the Victorian regime.

The submission commented that -

Act silent on removal from the Register

It should be noted that there is a lack of clarity in the SOR Act as to when an offender’s information is removed from the Register. The Act does discuss the length of reporting obligations but is silent on any removal. Although the Chief Commissioner must destroy certain materials obtained from the offender, there is no requirement for the information to be deleted from the register itself.

This is a concerning feature of the SOR Act. Where a person becomes a registered sex offender and is required to report for 8 years, one would naturally expect that on conclusion of the period their reporting obligations cease and they are removed from the Register. The SOR Act does not provide for this, and does not direct the Chief Commissioner to remove the registered sex offender’s name from the Register once the reporting period ends.

It is of great importance that this anomaly be rectified, and the Act should be amended to ensure that once an offender’s reporting period ends, the individual’s name and all entries are removed from the Register. Similarly, all information concerning the person should similarly be removed from ANCOR.

2. Act silent on appeal rights against discretionary orders

The Act currently contains a court discretion (s 11(3)) to make an order requiring an offender to become a registered offender under the Act.

For those automatically included by virtue of the mandatory registration provisions of the Act, there are obviously no appeal rights. However, where a court has a discretion to impose reporting obligations, it appears that the decision of the court in this instance is not open to appeal. This appears to be an oversight, and is out of step with other jurisdictions (Tasmania, South Australia and Queensland) which treat the order to register as a sentence imposed on conviction and reviewable as such.

It is entirely possible that an offender, registered under the discretion of the court, would be able to appeal a decision utilising the inherent jurisdiction of the Supreme Court but this is not entirely clear. A better approach would be to institute a specific appeal ground (similar to the jurisdictions above) deeming the decision appealable as if a sentence imposed on conviction.

3. Collection of information from offenders should only be in accordance with the Act

The SOR Act defines what registrable offenders ‘must report’

It is entirely possible that Victoria Police may ‘over-collect’ information from offenders that is not required under the SOR Act. The offender, in a position of potential stress, may additionally volunteer information over and above what is required under the reporting provisions of the Act. but is silent as to collection of information outside the parameters of what must be reported.

In the New South Wales Ombudsman Report into operation of the NSW equivalent of the SOR Act, the Ombudsman detailed a system of collection occurring where police procedures directed the registering police officer to ‘try to obtain further information’. The report also indicates that few (only 18% of respondents) told them that they did not have to provide the additional information.

It should be made clear in the SOR Act that if additional information is sought from sex offenders, the offender be informed that provision of the additional information is optional. It is inappropriate to collect information outside of the set of information mandated by Parliament by using the position of relative weakness and purported compliance to obtain additional information.

I am unaware as to whether this is occurring in Victoria, but the fact that off-statute collection of information appears to have occurred in other jurisdictions is alarming. Legislative protection should be given to offenders to ensure that any collection of information outside that required by the SOR Act is truly voluntary and that offenders are informed as such.

Moreover -

4. No requirement to safeguard privacy when verifying information

... there is no requirement on Police, when checking the veracity of information reported by offenders, to take reasonable steps to protect the privacy of the registered offender so as to not inadvertently alert third parties that the individual is a registered sex offender.

This is problematic, as the protections contained in section 64 of the SOR Act could be potentially undermined if investigation into the veracity of offender provided information results in disclosure of the individual’s status as a registered sex offender.

It may be helpful to include a provision requiring police to take reasonable steps to ensure that the offender’s status as a registered sex offender is not disclosed when investigating compliance of reporting obligations. The requirement of reasonability should ensure that Police can properly investigate matters of non-compliance balanced against non-disclosure of the offender’s status. ...

6. Management, use and disclosure of other information about registered sex offenders

The Information Paper makes the point that other public entities (namely, Corrections Victoria and DHS) hold information about registered sex offenders that is not on the Sex Offenders Register, and is governed outside the scheme of the SOR Act. The Information Paper questions whether other agencies should be required or permitted to provide police with information about a registered offender for inclusion in the Register and whether Corrections Victoria should be permitted to provide information to the DHS that is acquired during treatment programs where the offender is on parole or in custody.

It should be questioned as to whether other organisations (such as Corrections Victoria or DHS) should be required to provide information for inclusion on the Register. This would somewhat change the nature of the Register – from a database containing the self-reported information of the Offender - to a larger generic database containing information sourced from various other areas.

However, if an organisation (such as Corrections Victoria or DHS) had serious concerns about an offender (including possible recidivism), it is entirely appropriate for that organisation to make those concerns known to the appropriate authority (such as Victoria Police). ... it may be that specific legislation pertaining to both Corrections Victoria (for example, the Corrections Act 1986) or DHS (for example, the Children Youth and Families Act 2005) contain secrecy or confidentiality provisions that limit disclosure of information above and beyond the limitations contained in the Information Privacy Act. If it is thought that amendment to such legislation to better enable disclosure from these agencies to Victoria Police is necessary, I would urge any amendment to take the form of the provisions in IPP 2 (in particular, IPP 2.1(d),(e) and/or (g)).

Where Victoria Police receives information from such agencies, it will effectively be a decision for Victoria Police as to how it manages such information. However, I would question whether adding the information to the Register would be helpful, or whether it is likely to create an unwieldy and difficult to manage Register. It may be appropriate for Victoria Police to record such information through its existing intelligence management systems, rather than adding information to the Register. However, such a question is one better determined by Victoria Police. I note that section 62(2)(g) of the Act does provide for Victoria Police to include ‘any other information that the Chief Commissioner of Police considers appropriate’ in the Register.

I would, however, caution against the adoption of wide information sharing powers contained in the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic).

The Commissioner concludes that -

The Sex Offenders Registration Act 2004 is a creation of a time when Victoria had not formally committed to the protection of human rights. As discussed above, the Act’s aims and goals are laudable and important. However, the failure to institute judicial discretion in deciding whether an offender will be subject to the registration and reporting provisions undermines the moral and ethical basis, and efficiency, of the Act’s obligations. The possibilities of unwarranted registrations, such as the example given in paragraphs 7-10, become probable. Resources are required to manage registration and reporting by offenders who pose little risk of recidivism.

From a privacy perspective, many aspects of the Tasmanian Act, with court discretion regarding registration, rights of appeal,and a more discretionary approach to the reporting period, would be worth adopting. Stronger protections for inter-jurisdictional sharing, clarification as to what ‘unsupervised contact’ means, clarification of removal from the register, better transparency as to Register oversight and clarification around information sharing (in line with privacy principles) are all recommended.

This review allows Victoria to consider an overhaul of the operation of the Act and ensure that it operates efficiently, effectively and provides protection to the community whilst simultaneously operating in a humane manner. Victoria has an opportunity to set an exemplary template for other states, territories and international jurisdictions to consider adopting in the area of sex offender registration statutes. As it currently stands, the Act is not a template for excellence.

Crusades and controversies

Reading 'The Child Pornography Crusade and its Net Widening Effect' by Melissa Hamilton in 33(1) Cardozo Law Review 1-58.

Hamilton comments that -

The criminal justice system’s effort to combat child sexual exploitation has taken on a primary and aggressive focus toward prosecuting those who violate child pornography laws. The deontological policy labels all child pornography offenders, whether they are producers or merely viewers, as morally bankrupt and a threat to the nation’s children. Yet the basis for the policy bears fundamental flaws, and this article explores them. The article first summarizes legislative efforts to bolster child pornography laws and lengthen sentences for violators. It then provides a synthesis of criminal justice initiatives that are expending substantial resources targeted toward investigating, prosecuting, and punishing child pornography offenders. The policy and the initiative rely on a presumption that child pornography consumers are in reality undetected pedophiles and child molesters who are at high risk of sexually abusing children.

This article challenges the presumption by comprehensively analyzing certain of the most commonly cited studies that purport to empirically support correlations between child pornography, pedophilia, and child molestation. It also highlights other empirical evidence, as well as some practical considerations, that instead tend to show that most child pornography offenders are at low risk of committing contact sexual offenses. In sum, the concentration on child pornography crimes appears to be a misinformed policy that fails to directly protect real children from harm.

She concludes that -

As a broad criminal justice policy perspective, an obvious curiosity emerges: Have we not learned from the war on drugs? In the drug war, the United States wages battle without differentiating much among producers, importers, distributors, or users. It is mostly a bottom-feeding exercise whereby low level drug users are easy targets and presumably useful to bolster statistical measures of performance for criminal justice personnel. Seldom has law enforcement apprehended those most responsible for causing the greatest harm, i.e., drug producers. For this reason, the drug war is widely considered an abject failure, costing billions of dollars and contributing to prison overcrowding, yet without substantial reducing demand. The analogy here is that the war on child sexual abuse snares the more easily identifiable child pornography downloaders and traders, thereby attracting law enforcement resources to these offenders. Yet there is little or no evidence that this approach has yielded the expected deterrence value or has succeeded in protecting children. On the other hand, potential long-term negative consequences are probable. Where it appears that law enforcement initiatives have taken on a child pornography-centric approach, the campaign against child sexual exploitation has lost sight of what should be the primary interest—protecting actual children from sexual abuse. At the same time, as child pornography consumers are not the high risk offenders as presumed, resources are misdirected at imprisoning scores of defendants who do not pose a risk of future harm. Policymakers would seem to have an incentive to allow more rational minds to prevail.

So what are the potential alternatives that may more equitably balance protecting children without net widening to low risk offenders? It may be useful to reconsider the variations of harm and moral culpability interests proposed early on in this article. Public debate would properly explore these hypotheticals further, in isolation and in combination.

• the viewer is a 18-year-old male, 30-year-old female, or a 50-year-old man
• the child is age 6, 11, or 17 years
• the picture is morphed to appear sexually explicit, is of a naked child alone, or is of a child being sadistically penetrated by an adult

The first variation is relevant for both normative and risk-based reasons. As for the teenager proposed, several legal commentators have protested the application of child pornography laws to teenagers who are running afoul of them by rather innocuous behaviors such as sexting.One writer insightfully remarked that ― "[i]t is likely that minors prosecuted for child pornography are [] collateral damage to the breadth of laws designed to target pedophiles". While interested in protecting underage defendants, this observation helps make a broader point. What is the true scope of the ―collateral damage‖ of overly broad child pornography laws and is it justified? In the example posed earlier, the age of 18 was offered for ideological reasons. Many of those who would propose different rules for teenage sexters would limit them to those under the age of majority, so they would not cover individuals classified as adults yet still young. But is an 18-year-old male (or even one who is 19 or 20, for that matter) who downloads provocative images of pubescent and post-pubescent teenagers so repugnant that he deserves a 5-15 year sentence (in the federal system) for receiving child pornography? Actually, it might be normatively unorthodox for him not to be sexually attracted to teenagers, particularly to those within his peer group. The 50-year-old man is the easiest on whom to impose social expectations, though considering the prevalence of men with sexual attractions to young females, it is still open to debate in terms of normative boundaries. The 30-year-old female poses unease in terms of the age difference, but, on the other hand, women are at very low risk of sexual contact offenses. Yet child pornography laws do not generally consider gendered differences in morality or risk.

The age of the child has important policy implications, too. As domestic child pornography laws generally define a child as anyone under 18, one aspect of net widening becomes clearer. Do public morals truly find equally egregious a sexualized photo of a mature 17-year-old as it does a sexually explicit image of a 6-year-old? Is the harm to each childtruly equivalent and do they deserve the same moral antipathy? Modern society may be troubled by evidence of teen and adolescent sexuality. But, the criminalization and application of strict sentencing regimes to all sexual images of those under the age of 18 is unwarranted as a criminal justice policy and likely not demanded by current cultural standards. Much of the problem stems from the grouping of newborns through 17-year-olds into a single protected class. This amorphous class obscures the reality that modern culture recognizes roughly three categories of maturity: children, pubescents, and teenagers. Sexual norms vary widely among them, yet child pornography laws often do not.

Possibilities for policy change include altering the legal age of a minor for child pornography law purposes (such as lowering the upper limit absolutely to a lower number, such as 16 as it was in the federal system before 1988) or at least creating categories of ages with far more significant gradated differences between them. This issue is certainly not a novel one for public discourse. Debates about the appropriate age for legal consent to sexual activity and corresponding discussion about age disparities between partners in statutory rape laws have enlivened political and social commentary in modern times. More particularly, the current struggle with sexting may already be evidence that political figures are willing to discuss the issue of age—regarding both offenders and victims—in child pornography laws. Alternatively, more laws could be revised toward prepubescence rather than specific years in age, though that obviously raises additional definitional issues to be addressed.

As for the consideration of the sexual character of the image involved, international experts have recently noted the importance in distinguishing between child sexual abuse and child sexual exploitation. The latter may or may not involve sexual abuse but it requires other activities that violate a child‘s sexual innocence. Surreptitiously taking a photo of a naked or partially nude child, perhaps at the beach or swimming pool, may be exploitative but would not constitute the deeper harm of sexual abuse. There is also a need to differentiate the degree of exploitation involved in the material. A popular categorization is offered by the Combating Paedophile Information Networks in Europe (COPINE Project). It ranks the type of images on a scale of 1 to 10 from least to greatest harm: Indicative, Nudist, Erotica, Posing, Erotic Posing, Explicit Erotic Posing, Explicit Sexual Activity, Assault, Gross Assault, Sadistic/Bestiality. A useful purpose for such a ranking is that, from a punishment theory standpoint, crimes and sentences are appropriately based on the level of suffering involved. Thus, a system that strives for proportional and rational punishment requires laws that differentiate between unequal harms. The practicality underlying the ranking also calls into question the presumption that production necessarily involves sexual abuse. To the extent the child can voluntarily consent to an image being taken or the image is morphed, no sexual abuse may occur even if it is somewhat exploitative.

Still, several concerns held by child pornography crusaders should be addressed. One is the argument that there is value to pursuing child pornography offenders generally in order to reduce the production market. The market thesis, though, is more speculative and ideological than supported by experiential data. The global non-governmental organization End Child Prostitution, Child Pornography and Trafficking of Children for Sexual Purposes (ECPAT) acknowledges that organized crime is rarely involved with child pornography. Furthermore, a United Nations report indicates skepticism that children are sexually abused for the sole purpose of making marketable product. The argument is also troubling on several other, though somewhat contradictory, grounds. Being illegal may also serve to encourage more consumers since many report that the unlawful nature is what makes the material more sexually enticing. From an economic theory perspective, just as the countrywitnessed with the war on drugs, the criminality itself could conceivably drive profits for those organizations who can charge for the material. In actuality, however, the Internet permits widespread trading and downloading of child pornography materials for free, thereby creating a disincentive to those who believe they can profit by creating new product. Nevertheless, even if the market theory were valid, it does not necessarily mean more live children will be used. Technological advances, even those generally available like Photoshop, permit producers to create quite realistic looking images, such as by morphing innocent photos of children to appear sexually explicit, compositing images using a combination of body parts from a child and adult, or digitally mastering entirely virtual, though lifelike, children.

Another argument for crusaders is the harm thesis, which contends that the Internet has increased the risk to children of the modern sexual predator. But research to date provides evidence to the contrary. Those attributes that are likely required to successfully engage young people online, establish a relationship, and convince them to meet make solicitors unlikely to be impulsive, antisocial, or violent. Besides, jurisdictions already maintain more specific statutes, along with harsh consequences, that criminalize these types of contacts. These include offenses involving the Internet-facilitated solicitation of minors for sexual contact and the grooming of children with the use of child pornography. Child pornography laws are therefore an unnecessary backdoor to deter those offenses. Further, the ideology of the modern sexual predator as a stranger lurking on the Internet is itself potentially dangerous to the safety of children. It obscures that the persons they might really need to be wary of are those closest to them since the vast majority of those who commit sexual abuse against the underage are family members, friends, and peers.

Additional impediments plague the theory that harsh consequences are necessary for child pornography because it whets the appetite of consumers to commit sexual abuse in the future. Any causal connection is far too contingent and remote. Besides, the contention that incarceration is justifiable based on the thesis that material with a deviant theme will cause the viewer to act out the theme is a slippery slope. It would theoretically countenance the criminalization of material with images of drugs, violence, terroristic activities, etc., that may equally invoke emotive responses and imitative behaviors.

Naturally, there is an entirely different approach society can embrace in response to a social problem. Instead of addressing it primarily as a criminal justice issue, a public health model may be more suitable. While it is beyond the scope of this article to fully address what such a response would entail, it is of note that there have been some great successes around the world in addressing relevant harms and risks. These include school-based programs to teach students about sexual issues and how to protect themselves from sexual harm, as well as public education campaigns that aim to improve the safety of youth on the Internet. According to the Internet Safety Technical Task Force, a professional collaboration tasked by the states' attorneys general to report on safe practices in social networking, web companies are active in employing effectual technological methods to seek out and restrict materials that may include child pornography and otherwise limit potential contacts with juveniles. In terms of the risk of child pornography consumers, sexual treatment specialists are working to improve prevention, treatment, and intervention strategies.284 It is of import that sexual offender clinicians believe that sexual interests are often malleable in nature and can be modified.