Tough new laws against image-based abuse
10th Mar 2022
New laws introduced in January impose harsh penalties on perpetrators of image-based abuse, including fines of up to $110,000.
The crackdown on image-based abuse – also referred to as intimate image abuse – came into effect on 23 January 2022. Under the Online Safety Act 2021 (Cth), the eSafety Commissioner has new powers to pursue and penalise anyone found to be breaching the new laws.
What is image-based abuse?
Image-based abuse occurs ‘when an intimate image or video of a person is shared, without the consent of the person pictured.’[i] This includes images or videos that have been digitally altered.
The new laws include ‘expanded powers … across all platforms … including video gaming platforms, dating websites, and encrypted private messaging apps’.[ii]
The legislation also contains extra clout to act against the bullying of children via social media. However, the eSafety regulator can only act if the complainant is within Australia.
Online abuse against women on the rise
Online abuse – which is mostly conducted against women – has been getting worse in recent years, causing severe suffering and anguish. A recent ABC story reported a ‘surge of abuse being directed at women, who make up 70% of the reports of abuse.’ There were 2,687 complaints of image-based abuse to the Commissioner in the last financial year and this is just the tip of the iceberg.
Businesses have 24 hours to take down image-based abuse from their platforms
The new legislation also includes powers and actions that can be taken against website owners and social media companies that host image-based abuse on their platforms. From January, companies will have 24 hours – down from 48 hours – to comply with take-down notices or they will face fines of up to $550,000.
Social media companies could be held liable for defamatory comments
The Government has also recently introduced a Social Media (Anti-Trolling) Bill. The proposed legislation recognises social media companies as ‘publishers’ of users’ comments, where those comments originate in Australia.
This means that social media giants could be liable for defamatory comments posted on their platforms.
The legislation would also introduce new court powers to force social media companies to ‘unmask’ anonymous trolls who make defamatory comments online, according to a recent media release: Combatting online trolls and strengthening defamation laws.
The foreshadowed laws ‘address the implications’ of the High Court decision in Fairfax Media Publications v Voller  HCA 27, which ruled that operators of public Facebook pages, such as media companies, clubs, groups and individuals, are legally responsible for defamatory comments posted on their page by others.
Lodging an image-based abuse complaint with eSafety
For eSafety to act on a complaint, the person experiencing online abuse must first gather evidence and compile a report, and may consult a legal practitioner in order to do so.
Further information on the Online Safety Act 2021 is provided in this fact sheet.
This is an edited version of an article first published by Stacks Law Firm.
Anneka Frayne is the Director of Stacks Law Firm in Tamworth, working in family law, wills and estates, and disputes and litigation.
The views and opinions expressed in this article are the author's and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA)
[i] Australian Government, eSafety Commissioner, ‘Image-based abuse’ https://www.esafety.gov.au/key-issues/image-based-abuse>.
[ii] M Whitbourn and L Chung, ‘Trolls face $111,000 penalties for sharing intimate images as online regulator gets new powers’ The Sydney Morning Herald (17 November 2021) <https://www.smh.com.au/national/trolls-face-111-000-penalties-for-sharing-intimate-images-as-online-regulator-gets-new-powers-20211115-p59929.html>