Excerpt from Q&A, March 6, 2017. Quote begins at 3:10.

In the lead-up to International Women’s Day, an all-female panel of guests on ABC TV’s Q&A program discussed issues ranging from sexual assault and domestic violence to “revenge porn”, where a nude or explicit image is shared without consent.

Actor and presenter Faustina Agolley questioned what the law says on this issue, asking: “I thought there were laws to kind of protect [against] revenge porn? There aren’t?”

Let’s check the facts…..

Patchy state laws, and no specific national laws

Revenge porn is a media-generated term referring to the distribution of nude, sexual or sexually explicit images without the depicted person’s consent, often via social media or mobile phone.

Yet the term itself is misleading. Not all perpetrators are motivated by “revenge”, and not all images can be described as “pornography”. The term might also be offensive to victims, as it minimises the harms they experience when an intimate image (photo or video) is created or shared without permission.

This is partly why academics and government agencies are increasingly using the term “image-based abuse”.

There are specific laws in Victoria and South Australia that criminalise the distribution of an intimate or “invasive” image without consent. In both Victoria and South Australia, it is also a criminal offence to threaten to distribute an intimate or invasive image.

But there are no specific federal laws making the non-consensual creation or distribution of a nude or sexual image a criminal offence. There are also gaps in other Australian state and territory laws where no specific criminal offences exist.

In our research with police and legal services, some suggested that federal telecommunications laws such as “using a carriage service to menace, harass or cause offence” (Section 474.17 of the Criminal Code) could be used to respond to image-based abuse. But unless it is clear that a perpetrator intended to cause those impacts to a victim by distributing an intimate image, some of our interviewees thought it was a legal grey area and that clearer laws were needed.

There have been proposals to introduce new federal laws to tackle image-based abuse. To date, the federal government has committed to introducing a civil penalties scheme, which would assist victims in reporting image-based abuse and having the images removed.

Other states have also investigated whether new laws are needed. For example, Western Australia has proposed its own legal reform to tackle image-based abuse by a partner or ex-partner in the context of family violence. The proposed law would allow restraining orders (also known as intervention or protection orders in some jurisdictions) to prevent a perpetrator from distributing or publishing intimate images of another person. A breach of the order would be a criminal offence, attracting up to two years in prison.

In short, there is currently a piecemeal approach to legal protections against image-based abuse (or “revenge pornography”) in Australia.

While criminal and civil laws exist in some states and territories that could be (and have been) used to provide victim redress, there is no national consistency.

In states or territories without specific legislation, many victims simply have no recourse to justice if existing laws do not apply and/or if the victim cannot afford to seek remedies through the civil law, which is often costly and out of the reach of ordinary Australians.

Verdict

Faustina Agolley was right to be unsure on Q&A about what the law is on revenge porn in Australia – because it all depends on where you live. Specific laws against so-called “revenge porn” do exist in two states, Victoria and South Australia. But there is no specific criminal offence at the federal level or in other states and territories.

– Anastasia Powell, Nicola Henry, Asher Flynn.

Read the complete article on The Conversation.