The Victorian Parliament’s Law Reform Committee has completed an inquiry into the issue of ‘sexting’ and has issued a series of recommendations which together represent a refreshingly sensible approach to a complex and legally problematic issue.
The Terms of Reference define sexting as, “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’s recommendations [PDF: 1025KB] - there are 14 in all - cover a number of areas.
The first group of recommendations cover research, education and media programs, with a 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’, which is a welcome acknowledgement that it is the distribution of images that causes harm, rather than the taking of the images themselves.
The second group of recommendations seek to create legal alternatives to the use of the child pornography sections of the Crimes and Classifications Acts in sexting cases. The Committee recommends that these Acts be amended to allow a defence where the individuals involved were otherwise acting lawfully, and that Victoria Police and the Office of Public Prosecutions not pursue child pornography prosecutions where these defences would apply. These are important steps as the child pornography sections of these Acts do not cater for lawful sexual acts taken between consenting minors.
The Committee also recommends a new offence be created for sexting, again so that cases can be dealt with outside the child pornography context.
In a very significant move, the Committee recommends the introduction of a statutory cause of action for invasion of privacy by the misuse of private information which, if adopted, would allow people to sue those that distribute pictures of them or other private information and could set important precedents that increase the legal protection for individual privacy. The Committee also recommends the creation of a ‘Digital Communications Tribunal’ to deal with complaints about harmful digital communications.
The Committee has broken new ground with these recommendations and the Victorian Parliament now has an opportunity to lead the nation in implementing much-needed reform to cater for the potential damage that can be inflicted on individuals now that almost everyone (including teenagers and even pre-teens) has a high-quality camera and image distribution device (ie a smartphone) in their pocket.
EFA supports the recommendations of the Committee and calls on the Victorian Parliament to enact them. Other States and Territories should also follow their lead.
See EFA’s submission [PDF: 1.1MB] to the inquiry.