Submission

14 October 2005

Unauthorised Photographs on the Internet and Ancillary Privacy Issues

Below is a copy of EFA's submission to the Standing Committee of Attorneys-General in response to the Discussion Paper: Unauthorised Photographs on the Internet and Ancillary Privacy Issues.

Contents:

  1. Executive Summary
  2. Introduction
  3. Summary / Response to Specific Questions in the Discussion Paper
  4. Existing Regulation
    1. Surveillance Devices Acts
    2. Defamation laws
    3. Offensive use of an Internet service
    4. National Classification Scheme
  5. Legislative Reform Options
    1. Criminal Law
      1. Clarify existing RC classification for the purposes of online content regulation (s6.1.1.3)
      2. Create a new criminal offence to deal with unauthorised use of photographs of children (s6.1.1.1)
      3. Create a criminal offence to deal with voyeurism where an expectation of privacy exists (s6.1.1.2)
        1. Making of intimate visual recordings
          1. Definitions and Terminology
        2. Installing devices to facilitate making intimate visual recordings
        3. Publication/distribution of intimate visual recordings
      4. Take down notices (s6.1.1.4)
    2. Civil Law (s6.1.2)
      1. Rights to control use of one's image
  6. Conclusion
  7. References
  8. About EFA

1. Executive Summary

  1. EFA does not support use of the criminal law to capture the taking, or publication, of the type of photographs of young people that led to the Discussion Paper, nor a criminal law test of "offensive" to deal with an issue that is principally about privacy and use of photographs without consent. Child sexual abuse material is prohibited because it harms children in the making and is therefore a unique case. Photographing children in public places does not harm them, and while it may upset them or their parents, there is no harm warranting application of the criminal law.

  2. EFA agrees with the commentary in the Discussion Paper that given the impracticalities and difficulties, such restrictions would seem to be unenforceable, a disproportionate response to the issue sought to be addressed, and freedom of expression and artistic expression would undoubtedly be adversely affected.

  3. EFA is disturbed by the suggestion that the new Commonwealth offence of offensive use of an Internet service might be applicable to the scenarios which gave rise to the Discussion Paper. EFA opposed enactment of that offence due to its potentially extremely broad, and vague, application.

  4. EFA believes criminal law offences should be defined with sufficient particularity to enable members of the public to know with certainty what conduct is, or is not, criminal. The fact that the Discussion Paper states it cannot be known what type of use and/or content the above mentioned offence would catch until a number of prosecutions have been completed demonstrates its vagueness and resultant complete lack of certainty for Internet content providers wishing to comply with the law. In our view, if this offence is found to cover the scenarios that led to the Discussion Paper, then our previously expressed criticisms of its potential breadth will be shown to be justified.

  5. EFA does not consider a criminal law test of "offensive" is an appropriate means of dealing with an issue that is fundamentally about privacy and use of a person's photo without consent. Apart from the vagueness of the above mentioned offence, if individuals have, or are to have, any right not to have photographs of them published without their consent, it should not be necessary to establish that the method of publication (use of a carriage service), or the publication itself, is regarded as "offensive" by other persons.

  6. There are serious problems with the suggested option of broadening of the already very broad RC classification, to enable the content of linked web pages/sites to be taken into account for the purpose of classifying a different page RC. This approach would be more than "challenging" as suggested in the Discussion Paper. In practice it would be unworkable and ineffective. In addition, the proposal raises serious criminal justice issues arising from the fact that Classification Board decisions constitute prima facie evidence for the purpose of criminal prosecution.

  7. The National Classification Scheme is a completely inappropriate means of prohibiting publication of images that are not themselves offensive. It is also completely unsuitable for dealing with what is in fact an issue of privacy and/or lack of control over use of one's own image. The scheme should not be broadened to include a test of "offensiveness" arising from the circumstances of use of an image that is not itself offensive.

  8. In relation to the suggested option of a new criminal offence to deal with images of children that are exploitative, offensive or for the purpose of sexual gratification, the National Classification Guidelines already state that material that will be classified RC includes "depictions of child sexual abuse or any other exploitative or offensive depictions" of children. Therefore the suggested option appears to have a sole purpose of enabling the content of linked pages to be taken into account. It therefore raises problematic issues similar to those associated with broadening the already very broad RC classification. Further, the suggested new criminal offence concerning images of children does not seem likely to capture material that is not already likely to be captured by the existing Commonwealth offence of offensive use of an Internet service.

  9. EFA submits that no new criminal offences dealing specifically with depictions of children are necessary.

  10. Circumstances exist in which individuals reasonably expect to be afforded privacy in "public places", for example, in toilets, changing rooms, etc. and also in relation to "private parts" of the body that would not be exposed to view except as a result of filming from underneath and/or through clothing (using, for example, a mobile phone with infrared camera such as that which embroiled Vodaphone in a row last year).

  11. EFA submits that criminal offences to provide individuals with protection from intimate filming, and publication/distribution of resultant images, without consent in circumstances in which a reasonable person would reasonably expect to be afforded privacy, should be created to fill the significant gap that currently exists in the laws of most Australian jurisdictions. Detailed information concerning the type of offence we consider would be appropriate is provided later in this submission.

  12. EFA is also of the view that individuals should have civil rights to control use of their image, and that such rights should not be limited to the context of use on a web site. Such rights should include a requirement for prior consent for some purposes (for example exploitation for commercial purposes), and an enforceable civil right to restrain use of their image (including removal from a web site) in some circumstances.

  13. Defining the relevant purposes, circumstances and boundaries of civil rights to control use of one's image involves even more complex issues than those applicable to images of an intimate private nature. Further, establishment of such rights would affect many more stakeholders than are likely to have heard of, or taken an interest in, the Internet topic of the current Discussion Paper. We therefore submit that rights to use of one's image should be made a topic of a separate public inquiry.

  14. Special legislation granting civil rights merely in relation to use of one's image is unlikely to be a practical, appropriate and adequate response to individuals' privacy concerns in the current Australian regulatory environment. We consider such legislation likely to be highly complex due to the inadequacy of the existing privacy protection regime and resultant need to define potentially numerous types of images in relation to which individuals should have a right to control use, or use should be prohibited without consent, most of which would be more appropriately dealt with by legislation of general application (not necessarily limited to images) relevant to the particular circumstances. Some such circumstances are outlined in our submission.

  15. EFA submits that the issue of rights to use of one's image should be considered by a separate public inquiry with an objective of defining the civil rights individuals should have to control use/publication of their image, and sensitive private information about them.

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2. Introduction

01. Electronic Frontiers Australia Inc. ("EFA") is a non-profit national organisation representing Internet users concerned with on-line rights and freedoms. EFA is funded by membership subscriptions and donations and has members in all Australian States and Territories. Further information about EFA is provided in Section 8 hereof.

02. EFA appreciates the opportunity to make this submission in response to the Standing Committee of Attorneys-General's Discussion Paper titled Unauthorised Photographs on the Internet And Ancillary Privacy Issues[1]. We also take this opportunity to compliment the Committee on a comprehensive and balanced paper recognising the competing interests of privacy and freedom of expression.

03. This submission contains three main sections. Section 3 contains short responses to the specific questions asked in the Discussion Paper with references to later sections for further detail. Section 4 raises aspects of some of the existing laws, in relation to their applicability and/or suitability, that were not mentioned in the Paper. Section 5 comments on the legislative options put forward in the Paper and includes our recommendations.

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3. Summary / Response to Specific Questions in the Discussion Paper

(1) Should the taking of unauthorised images of children be restricted, giving consideration to the competing interests of privacy versus freedom to take photographs in public places? and
    (a) If so, what form would those restrictions take; and
    (b) What exceptions, if any, would be required?

04. EFA does not support restricting the taking of unauthorised images of children, in public places, of the types that prompted preparation of the Discussion Paper[1]. We agree with the commentary in the paper (paras 31-38) that given the impracticalities and difficulties, such restrictions would seem to be unenforceable, a disproportionate response to the issue sought to be addressed, and freedom of expression and artistic expression would undoubtedly be adversely affected.

05. However, as stated in the paper (para 25):

"Unauthorised photographs can also be of a more private nature, for example, those involving nudity, sexual activity, in toilets, and underneath clothing ('upskirting'). There have also been reports of mobile-phone cameras being used surreptitiously to take photographs in public change rooms and swimming pools."

06. We believe there is a need for legislative restrictions on the taking of unauthorised images of an intimate private nature of both adults and children in private places, and in public places in circumstances under which individuals reasonably expect to be afforded privacy and ought to be afforded privacy. This matter is discussed in Section 5.1.3 below.

(2) Should the use or publication of unauthorised photographs/ images taken in public places be regulated?; and
    (a) If so, what is it about the use that makes it worthy of regulation?
    (b) What types of 'use' should be regulated?

07. EFA agrees with the commentary in the Discussion Paper (paras 40-46) that the use to which an unauthorised image is put is generally of much greater concern than the taking of an unauthorised photo.

08. Nevertheless, we do not support the creation of criminal offences placing prior restraint on the use or publication of unauthorised images taken in public places under circumstances in which there is no reasonable expectation of privacy (such as those which prompted the preparation of the Discussion Paper). In our opinion such criminal offences would also be a disproportionate response to the concerns raised. We do not consider the issue is of a sufficiently serious nature to warrant criminal offences that would undoubtedly and unduly encroach on freedom of expression. In addition, we very much doubt it would be possible to narrowly tailor a criminal offence so that it would in fact deal with the concerns raised without also criminalising the use and publication of ordinary photos taken in a wide range of public places. Furthermore, as stated in the paper, "any prohibition would require a vast number of exceptions (for example: family, friends, media) and arguably these exceptions could be the most common source of abuse or misuse". Furthermore, there are serious problems, including criminal justice issues, with the proposal to broaden the RC classification as discussed in Section 5.1.1 later herein.

09. However, there are some circumstances in which individuals reasonably expect to be afforded privacy in "public places", for example, in toilets, changing rooms, etc and also in relation to 'private parts' of the body that would not be exposed to view except as a result of filming from underneath and/or through clothing (using, for example, a mobile phone with infrared camera[2] such as that which embroiled Vodaphone in a row last year). We consider there is a need for legislative prohibitions on use and publication of such images without the person's consent. This matter is discussed in Section 5.1.3 below.

10. Furthermore, we consider such legislative prohibitions should apply in respect of images of adults and children. We do not agree with the commentary in Section 3.4 ("Who should be protected?") of the Discussion Paper in that it appears to contend that only children and celebrities should be afforded protection by the law.

(3) Should consent be required for photographs used for particular purposes?

11. EFA considers consent should be required for any use of photographs of an intimate private nature as referred to above.

12. We are also of the view that consent should be required for some uses of other types of photographs of individuals. This matter is discussed in Section 5.2 below.

(4) In the event that an offence to deal with unauthorised photographs on the Internet is considered necessary, what features should it contain?

13. EFA does not support offences applicable solely to unauthorised photographs on the Internet. Any offences dealing with unauthorised photographs of individuals should be contained in legislation of general application, that is, applicable to all methods of publication (including newspapers, magazines, television, etc.).

(5) Should there be some enforceable civil right in relation to the use of your image? If so, on what basis?

14. EFA is of the view that individuals should have an enforceable civil right in some circumstances. This matter is discussed in Section 5.2 below.

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4. Existing Regulation

15. EFA agrees in general with the analysis in the discussion paper concerning the applicability of existing laws. However, we make the following additional comments in relation to some of these laws.

4.1 Surveillance Devices Acts

16. As outlined in the Discussion Paper, only Victoria, W.A. and N.T. have legislation that governs optical surveillance devices but these only provide "protection in respect of filming private activities in the private sphere [and] there may be a gap to the extent that people have expectations of privacy in public places (i.e. 'upskirting')".

17. Another relevant issue, not mentioned in the Discussion Paper, is that these laws also do not apply to a person who is a party to the private activity. Hence they apparently do not prohibit covertly filming, for example, private sexual activity with another person and publishing those photographs/film without the other person's consent.

18. We also question whether they apply to a person who occupies the premises in which the covert filming takes place given media reports in 2003 that a landlord in Victoria who secretly installed cameras and filmed his adult boarders in the shower was apparently not charged under the Victorian Surveillance Devices Act 1999 but was convicted for child pornography and stalking offences[3].

4.2 Defamation laws

19. The Discussion Paper refers to use of defamation action in relation to unauthorised publication of privacy intrusive photographs, but provides only one example of a successful case, that is, that "footballer Andrew Ettingshausen succeeded in a defamation action which involved unauthorised publication (in a widely read magazine) of a photograph of him with his genitalia exposed" (para 57).

20. It should be noted however that the above action was successful, not because of the privacy intrusive nature of the photograph, but because a significant proportion of the general public had (and still has) a mistaken belief that the magazine publisher would have had to obtain Mr Ettingshausen's consent in order to legally publish the photograph. As has been pointed out by [4]:

"In the case Mr Ettingshausen, a well known footballer, sued for defamation over publication of photograph of him in the shower. He successfully argued that the image damaged his reputation in the community by implying that he was the sort of person who would consent to having such a photograph published. Again a case that relied on, and thus further reinforced, the public's misapprehension that such consent is required.

Like passing off, defamation law is not really suited to providing the sort of protection sought in cases like Ettingshausen and Tolley. Although successfully applied, the link to defamation or ridicule is somewhat tenuous. In both cases a sufficiently prominent disclaimer or in the case of Ettingshausen a more invasive and thus obviously not approved photograph, would probably remove any basis for action."

21. There would also be no basis for action in instances of publication of privacy intrusive photographs that are a true record of a person's appearance or activities in the Australian jurisdictions in which truth, alone, is a complete defence. As stated by the Australian Law Reform Commission in its report Unfair publication: defamation and privacy[5]:

  • "In no [Australian] jurisdiction is personal privacy, as such, protected. In those jurisdictions where a defendant must establish 'public benefit' or 'public interest', in addition to truth, to make out the defence of justification there is an indirect protection. But it is uncertain in operation and it affords no protection against the publication of material which is non-defamatory but embarrassing.
  • In those jurisdictions where truth, alone, is a defence the law of defamation imposes no inhibition upon the publication of personal information. Intimate facts, having no relevance to public affairs or to the public activities of the subject, may be published without restriction provided that, if the statements are defamatory, they are accurate."

4.3 Offensive use of an Internet service

22. The Discussion Paper states:

73. The Commonwealth Criminal Code has recently been amended to include an offence of intentionally using a carriage service (including use of the Internet) in a way which would be regarded by reasonable persons as being, in all the circumstances, menacing, harassing or offensive (section 474.17). The new offence came into force on 1 March 2005.
74. Therefore, incidents akin to the school boys rowing may be covered by the new offence if the placing of these images on a particular website was considered to be use of an Internet service in a way that is offensive to reasonable persons. Similarly, posting more explicit pictures (without consent) such as up-skirting and those involving nudity may potentially be considered an offensive use of a telecommunications service. The judge in each case will decide whether particular material or a use of a carriage service would be regarded by a reasonable person as offensive. The 'reasonable persons' test allows community standards and common sense to be imported into a decision about whether conduct is in fact offensive. The maximum penalty for this offence is imprisonment for 3 years.
75. As this offence is relatively new, it is not clear yet the extent to which it will be applicable to the school boys type scenario.
...
135. The new Commonwealth offence of offensive use of an Internet service may have application to the scenarios which gave rise to the Discussion Paper. However, until a number of prosecutions have been completed it is difficult to undertake a full assessment in respect of its coverage of the scenarios raised.

23. EFA is disturbed by the suggestion that the above offence might be applicable to the scenarios which gave rise to the Discussion Paper.

24. We opposed enactment of the above offence for the reasons set out in detail in our submissions to the Commonwealth Attorney-General's Department[6] and subsequently to the Senate Legal and Constitutional Legislation Committee[7]. Briefly, our objections arise from the fact that the offence does not require that the content of a web page be found to be offensive, nor require that anyone actually have been offended by another person's use of a carriage service, nor require that the accused person have an intent to use a carriage service in way that would be regarded by reasonable persons as being offensive (only that the person was "reckless" as to a risk that their use may be regarded as offensive by the fictional "reasonable persons"). As a result, the offence has potentially extremely broad, and vague, application.

25. We believe criminal law offences should be defined with sufficient particularity to enable members of the public to know with certainty what conduct is, or is not, criminal. The fact that the Discussion Paper states it cannot be known what type of use and/or content the offence would catch until a number of prosecutions have been completed demonstrates its vagueness and resultant complete lack of certainty for Internet content providers wishing to comply with the law.

26. Furthermore, we were surprised to read in the Discussion Paper that "The judge in each case will decide whether particular material or a use of a carriage service would be regarded by a reasonable person as offensive" (para 74). That is contrary to our understanding and we therefore assume the statement is incorrect. Prior to enactment of the offence, representatives of the Commonwealth Attorney-General's Department assured us that as the offence is a Commonwealth indictable offence, a jury (not a judge) would decide what would be regarded by reasonable persons as offensive, unless the defendant (and also the prosecution) voluntarily chose to have the matter heard by a judge sitting alone. EFA does not consider it appropriate for a single judge (or any single individual) to be the arbiter of what "reasonable persons" would regard as offensive.

27. In our view, if this offence is found to cover the scenarios that led to the Discussion Paper, then our previously expressed criticisms of its potential breadth will be shown to be justified.

28. EFA does not consider a criminal law test of "offensive" is an appropriate means of dealing with an issue that is fundamentally about privacy and use of a person's photo without consent. Apart from the vagueness of the above offence, if individuals have, or are to have, any right not to have photographs of them published without their consent, it should not be necessary to establish that the method of publication (use of a carriage service), or the publication itself, is regarded as "offensive" by other persons.

4.4 National Classification Scheme

29. Relevant issues regarding the National Classification Scheme are raised below in relation to the legislative option put forward in Section 6.1.1.3 of the Discussion Paper.

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5. Legislative Reform Options

5.1 Criminal Law

5.1.1 Clarify existing RC classification for the purposes of online content regulation (s6.1.1.3)

30. EFA is opposed to this option. The classification scheme is a completely inappropriate means of prohibiting publication of images that are not themselves offensive. It is also completely unsuitable for dealing with issues of privacy and/or lack of control over use of one's own image.

31. We note the advice that the photographs that led to the discussion paper "were not submitted to the Classification Board for classification and as such it is difficult to conclude with any certainty whether or not the images would have been classified Refused Classification (i.e. 'prohibited content' and subject to 'take-down' notices)" (para 136). We question why the photographs were not submitted and whether that was because it would have cost the submitter over $500 per web page (or image) to have same classified by the Classification Board and the probability of an RC classification was very low.

32. The Discussion Paper states:

"92. The RC classification is broad and encompasses material involving minors that are depicted in a way that would be offensive to a reasonable adult. As such, it is possible that innocuous pictures of children, for example pictures of children in underwear from a department store catalogue, could be RC in particular circumstances or context. For example, a photograph of a child in underwear on its own might be inoffensive, but it may become offensive to a reasonable adult in the form of a collection of such images. In addition, the Classification Board has previously classified an inoffensive image of five year old child fully clothed on a web page with an offensive url as RC ('prohibited content').
...
94. However, while the Classification Board is able to take context into account there may be a gap to the extent that website links may be taken into account as context in respect of a child's image. For example, an innocent photograph of a child with a link titled 'sex with boys pics' would be classified RC by the Classification Board as the image of the child in the context of the words would be likely to offend a reasonable adult. However, if that same innocent photograph of a child on a web page with a link titled 'more pics' (which was actually a website containing child pornography) were to come before the Classification Board - they would not be able to take the content of that linked web page into account. The Classification Board could only take into account the actual context visually apparent with the image of the child."

33. The Paper suggests that the above constitutes "a gap" in the existing system of online content regulation and that, to address this issue, "provision could be made to specifically allow the Classification Board to take into account this slightly broader 'context' [i.e. the content of linked web pages/sites] in determining whether it is a depiction of a child likely to offend a reasonable adult" and hence whether it constitutes "prohibited content" because it is classified RC (paras 137 and 154).

34. EFA agrees that "the RC classification is already very broad in respect of capturing offensive images of children" (para 153) whether or not they are not naked or involved in sexual activity.

35. We are opposed to broadening of the RC classification in an attempt to capture the scenarios depicting young people that led to the Discussion Paper. Child sexual abuse material is prohibited because it harms children in the making and is therefore a unique case. Photographing children in public places does not harm them, and while it may upset them or their parents, there is no harm warranting application of the criminal law.

36. We are also opposed to any changes to legislation or the National Classification Code or Guidelines to enable the content of linked web pages/sites to be taken into account. As acknowledged in the Discussion Paper:

"any attempt to try and address the issue of links will be challenging. In broadening the context that the Classification Board may take into account, consideration will need to be given to intention and control over links and their content." (para 155).

37. In our view such an approach would be more than challenging; in practice it would be unworkable. In addition, the proposal raises serious criminal justice issues.

38. The Discussion Paper states, in relation to the photos of the Melbourne school boys, that the webmaster claimed that the adult links had been placed on the site by hackers. Further, given that the content of linked web pages can be changed at any time by that other site's content provider without the knowledge of the accused content provider, it appears an accused content provider who admitted to including the links would be likely to claim that the content on the linked page/s had been changed without their knowledge. If so, depending on the particular State/Territory classification enforcement legislation, the prosecution may then have to prove beyond a reasonable doubt that the linked page contained particular content at the time the link to it was created, the date of which may not even be able to be ascertained. While this may be provable in some instances, it appears to be a completely uncertain and unreliable means of purporting to provide protection to a person whose image is used without consent.

39. Another aspect that would need to be addressed is the number of levels of links to be taken into account. If the page containing a photo (Page A) contains a link to Page B, and Page B contains a link to Page C which contains "offensive" content, then is the content of Page C to be taken into account, or only the content of Page B? What if Page B automatically redirects the viewer to Page C? Is Page C then to be taken into account? We consider it would indeed be challenging, and probably impossible, to define the applicable context with adequate certainty for the purposes of criminal law.

40. Moreover, serious criminal justice issues are raised by the prospect of the Classification Board taking the content of linked pages into account.

41. The content of the linked pages would be a matter of fact considered by the Classification Board in deciding to classify another page RC and the decision would be made without regard to the content provider's intent and state of knowledge and control in relation to the content of linked pages (nor whether links were placed on the page by hackers). Nevertheless such a decision, like any refused classification (RC) decision of the Board, constitutes prima facie evidence enabling the content provider to be charged with a criminal offence (making available material that would be classified RC) under some State/Territory classification enforcement Acts. Such laws, as currently written, give rise to considerable potential for individuals to be convicted in instances when they did not have knowledge and control in relation to the content of linked pages, because the laws were not designed take such matters into account in relation to content that the defendant did not publish.

42. As a result, under for example Victorian law, the burden of proof in relation to knowledge concerning linked content would fall to the defendant. That law offers the defendant a defence of proving that he/she believed on reasonable grounds that the material would not be classified RC if it were to be classified. In order to prove that, the defendant would have to prove that he/she did not have knowledge of the content found on the linked pages/sites when the Classification Board viewed same in conjunction with classifying the defendant's page RC. EFA is generally opposed to reversal of the burden of proof and especially when it requires the defendant to prove a negative. We find it highly unlikely that a defendant could prove that they did not know what was on a linked web page at the time it was viewed by the Classification Board, which would be some point in time after the defendant viewed the page and created the link. At the very least, such State/Territory legislation would need to be changed to place the burden of proof concerning the defendant's state of knowledge on the prosecution.

43. Alternatively, under for example South Australian law, the prosecution would be required to prove that the defendant knew, or was reckless as to whether, the material would be classified RC if it were to be classified. If the RC classification is extended to take into account the content of linked pages, we consider it is not inconceivable that it would be found to be "reckless" to place links to any other pages on one's own web pages because it is a commonly known fact that linked page content may be changed by another person and therefore there would be a risk of one's own web page being classified RC as a result of it including links. This potential would unduly chill freedom of expression to an even greater extent than does the existing State law and would also adversely affect ease of access to information.

44. Furthermore, broadening the RC classification to involve the content of linked pages would not resolve the issues that led to the Discussion Paper. In those scenarios, the apparent issue was unauthorised use and the way the images were used, not that the images themselves were offensive to a reasonable adult. In the scenario involving photographs of children taken in South Brisbane, it is our understanding that the site contained no links to offensive material. Obviously, such sites would not be affected by taking linked content into account. Hence web site providers would continue to be able to publish any unauthorised photos, without being affected by a broadened RC classification, by simply not including links.

45. The Discussion Paper does not make clear whether the "context" proposed to be taken into account includes whether or not a photograph was published without consent. However, in relation to this legislative option, it states:

"152. The Classification Board determines whether images involving children are offensive (and therefore RC) by objectively examining the image and determining if it would be likely to offend a reasonable adult. The Classification Board does not consider issues such as the purpose of the images, privacy of the persons portrayed in any images or address issues around how the images were obtained, and it may be inappropriate to suggest this sort of role."

46. Such a role for the Classification Board would be totally inappropriate because the Board is, and should continue to be, required to objectively examine material in determining whether it would be likely to offend a reasonable adult. The Classification Board could not determine whether a particular page containing photographs published without consent is offensive to a reasonable adult without enquiring into whether or not the images were used without consent. It is highly doubtful that they could objectively make classification decisions if required to ascertain whether or not the person depicted had consented to use of their image and potentially become involved in disputes concerning consent or otherwise. The Classification Board is also not qualified to consider the extent of privacy intrusion. It would be highly inappropriate to require the Classification Board to undertake either of the foregoing roles in conjunction with classifying material.

47. In addition, the Classification Board taking lack of consent into consideration would present criminal justice issues. If the Classification Board formed the view that consent was not given and that was taken into account in classifying a page RC, the Board's classification decision would be prima facie evidence enabling the content provider to be charged with a criminal offence (as referred to earlier herein). However, the Board's conclusion concerning consent would be able to be drawn without regard to criminal law rules of evidence and standards of proof. While a defendant who had obtained consent would likely be able to raise a successful defence (for example under the Victorian law that he/she believed the material would not be classified RC because consent had been obtained), again we object to the reversal of the burden of proof. Furthermore the subject web page would remain classified RC even after it was proven that consent had been obtained because the Classification Board is not permitted to reclassify material[8] for a period of two years and the courts are not empowered to overturn a classification decision that was "reasonably open" to the Classification Board to make[9]. While the defendant could probably apply to the Classification Review Board for a review the Classification Board's decision, this would cost the defendant a classification review fee of over $1,200[10]. Such a scenario would be unreasonable and unfair and as such demonstrates the inappropriateness of any changes that would give the Classification Board a role involving consideration of consent or lack thereof in classification decisions that become prima facie evidence of a criminal offence.

48. We note the commentary in the Discussion Paper regarding jurisdictional issues and the inherent enforcement difficulties arising from the international nature of the Internet (paras 140-141) and that the images which led to the Discussion Paper were hosted on sites outside Australia. We consider there would be no prospect of international co-operation in enforcing any Australian offences prohibiting publication of the type of unauthorised photographs that led to the Discussion Paper, nor an offence arising from an extension of the already very broad RC classification to take into account content of linked pages/sites.

49. In summary, the classification scheme is a completely inappropriate means of dealing with what is in fact an issue of privacy and/or lack of control over use of one's own image. It should not be broadened to include a test of "offensiveness" arising from the circumstances of use of an image that is not itself offensive.

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5.1.2 Create a new criminal offence to deal with unauthorised use of photographs of children (s6.1.1.1)

50. EFA does not support this option. It is also an inappropriate and disproportionate response to the issues raised.

51. The Discussion Paper states:

"144. The formulation of a new offence to specifically address the issue at hand requires further detailed consideration. However in the interests of facilitating discussion, this paper will outline two alternate possible new offences which could be created to address the posting of unauthorised photographs of children on the Internet.

145. For example, an offence could be created which would capture images of children (taking into account the context in which they appear) that a reasonable adult is likely to consider:
(a) exploitative; or
(b) offensive; or
(c) for the purpose of sexual gratification.

146. Alternatively, an offence could be created which applies to:
- the posting of unauthorised photographs of children (taking into account the context in which they appear) that are intended or (apparently intended) to excite or gratify sexual interest.

147. The second proposed criminal offence focuses on the sexual gratification element, whilst the first proposed offence is much broader in that each of the elements (exploitation, offensiveness or for the purpose of sexual gratification) on their own are enough to prove the offence."

52. These proposed offences, if they were to encompass the type of scenarios that led to the Discussion Paper, would also require the taking into account of "context" including the content of linked web pages and sites. Therefore, similar problems arise concerning the taking of linked content into account as discussed in Section 5.1.1 above in relation to broadening the RC classification.

53. The sole purpose of these proposed offences appears to be to enable dealing with images in the "context" of linked content given that the Office of Film and Literature Classification ("OFLC") Film (Internet Content) Classification Guidelines state that material that will be classified RC already includes:

"Depictions of child sexual abuse or any other exploitative or offensive depictions involving a person who is or who looks like a child under 16 years." [emphasis added]

54. Presumably depictions of children that had the "purpose of sexual gratification" would already be found to be an "exploitative or offensive depiction", so there is no apparent purpose for either of the two proposed offences other than enabling linked content to be taken into account.

55. However, if the unstated intention of the proposed option is to define children to include 16 and 17 year-olds, EFA considers it should not only be persons under 18 years who are afforded protection from having their image used without consent in a context that is exploitative or offensive or for the purpose of sexual gratification. We expect that individuals who are 18 years of age and older would be equally likely to be upset by such use of their image without consent as persons who are 16 and 17 years of age.

56. As stated earlier herein, we do not support use of the criminal law to capture the type of images that led to the Discussion Paper, nor a criminal law test of "offensive" to deal with an issue that is principally about use of photographs without consent. In addition, we are highly concerned that persons accused of such proposed offences would be unlikely to be entitled to a jury decision concerning whether or not the material was offensive to a reasonable adult, because the laws would be enforced in States/Territories without a constitutional right to trial by jury.

57. We also note that these proposed offences do not seem likely to capture material depicting children that is not already likely to be captured by the existing Commonwealth offence concerning offensive use of an Internet service. We submit that no new criminal offences dealing specifically with depictions of children are necessary.

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5.1.3 Create a criminal offence to deal with voyeurism where an expectation of privacy exists (s6.1.1.2)

58. EFA is of the view that offences intended to provide individuals with protection from intimate filming in circumstances in which a reasonable person would reasonably expect to be afforded privacy should be created to fill the significant gap that currently exists in the laws of most Australian jurisdictions.

59. It is evident there is a significant gap from the analysis of existing laws contained the Appendix to the Discussion Paper and also from news media reports of instances where the prosecution was not able to find a relevant offence, or the accused walked free because the Court determined the offence was not applicable to the conduct. It also seems likely that some convictions would not have occurred in the absence of a guilty plea to an offence that was not clearly relevant to the circumstances (e.g. stalking)[11]. We also note that the NSW indecent filming offence was enacted last year in response to a case in which the court found that no law in NSW prohibited secretly filming flatmates in the shower[12].

60. In forming the view that new legislation is necessary, we have reviewed the relevant existing and proposed laws referred to in the Discussion Paper and also recently introduced/enacted laws. We note that while the Discussion Paper refers to legislative proposals under consideration in some other countries, some of those countries have since introduced legislation into Parliament (e.g. New Zealand, May 2005[13]) and/or enacted legislation (e.g. Canada, July 2005[14]). In addition, voyeurism offences were enacted in U.S.A. federal law in late 2004 [15]. Given enactment of these laws, it appears there would be a prospect of assistance from overseas enforcement agencies in relation to enforcement of Australian offences dealing with intimate covert filming. There is certainly vastly more prospect than in relation to Australian offences prohibiting publication of the type of unauthorised photographs that led to the Discussion Paper, or an extension of the already very broad RC classification. Further, notwithstanding the Discussion Paper topic, we consider offences should be enacted as laws of general application, that is, not limited to publication on the Internet.

61. In relation to the N.S.W. indecent filming offence enacted in 2004[16], we note the comments in the Discussion Paper (para 68) that:

"The NSW offence requires the filming to be done for a sexual purpose or for sexual gratification. Given that the filmed act must be an intimate private act, such as using the toilet, showering or bathing, and the filming has occurred without consent, arguably those facts alone should render the conduct criminal, without the need to also establish a sexual purpose in the filming."

62. EFA agrees that there ought not be a need to establish a sexual purpose. We consider offence/s should be designed to protect intimate private acts and also 'private parts' of the body regardless of the purpose of the filming. An offence limited to sexual purposes will not capture recording done for other purposes, such as to "generate visual representations for commercial sale, to harass or intimidate the victim, or to amuse others at the victim's expense"[17]. Hence, we do not consider the type of offence/s in the N.S.W., U.K.[18] or U.S.A. federal law to be adequate because they are limited to conduct involving a sexual purpose. In comparison, the recently enacted and proposed offences in Canada and New Zealand respectively are not limited to sexual purposes.

63. We submit that offences should be created dealing with the making of intimate visual recordings, and the publication/distribution of such recordings, as discussed below.

5.1.3.1 Making of intimate visual recordings

64. It should be an offence to intentionally make a visual recording of another person, without the express consent of that person, if:

  1. the person is in circumstances in which a reasonable person would reasonably expect to be afforded privacy (i.e. same as the N.S.W. offence enacted in 2004) and the person is:
    1. naked or has his or her genitals, pubic area, buttocks, or female breasts (below the top of the areola) exposed, partially exposed, or clad solely in undergarments; or
    2. engaged in showering, bathing, toileting, or other personal bodily activity that involves dressing or undressing; or
    3. carrying on a sexual act of a kind not ordinarily done in public; OR
  2. the recording is of the person's naked or undergarment-clad genitals, pubic area, buttocks, or female breasts and is made:
    1. from beneath or under the person's clothing; or
    2. through the person's outer clothing in circumstances where it is unreasonable to do so.

5.1.3.1(a) Definitions and Terminology

Make a visual recording

65. The term "make a visual recording" (or similar term) should be defined to cover causing one or more images (whether still or moving) of another person to be created for the purpose of enabling the maker, or another person, to observe those images whether while the person is being filmed or later. That is, it should be defined so as to cover both recording image/s to be viewed later and recording by means such as broadcasting or electronically transmitting images in "real time" without retaining or producing a stored copy.

Reasonable expectations

66. The Discussion Paper suggests that an offence "could apply to the use of voyeuristic/offensive images made without the subject's consent in circumstances where the subject would have a reasonable expectation of privacy" (para 149).

67. While we realise the above is not necessarily suggested as phrasing of an actual offence, we recommend against using the test of "a reasonable expectation of privacy" because this is not, in practice, protective of privacy. As has been pointed out by the NSW Privacy Commissioner, it has become a reflective standard rather than a proscriptive one:

"International experience has shown that the test of 'reasonable expectation of privacy' has not, in practice, actually been protective of privacy. In the United States, since the test was first formulated in Katz v US in 1967, the privacy protection afforded by the test in theory has been successively watered down by the courts, such that as technology improves there is a assumption that privacy expectations should be lowered accordingly. On a number of occasions, Congress has had to create legislative privacy rights after the courts had found no 'reasonable expectation of privacy' in relation to various practices or information, including financial records, and telephone dialling records. The 'reasonable expectation of privacy' test has furthermore been found not to have been breached in relation to vehicle tracking devices, or searches of garbage left for collection. In the USA expectations of privacy are therefore being actively lowered by technical advances in machines and devices designed to invade privacy. In that sense the test of 'reasonable expectation of privacy' has become a reflective standard rather than a proscriptive one. This test alone would not be robust enough to prevent the proliferation of a surveillance society and eventually a police state. Given the fundamental nature of our need for privacy, as a cornerstone for the freedom of speech and freedom of association at the heart of a healthy democracy, the onus must be upon those who seek to invade peoples' privacy through surveillance to justify the reasonableness of their own actions."[19]

68. We note that the N.S.W. indecent filming offence does not contain the "reasonable expectations" test but instead contains the test of "circumstances in which a reasonable person would reasonably expect to be afforded privacy". We consider that to be a significant improvement over the "reasonable expectations" test because it appears to recognise that it is reasonable to expect to be afforded privacy regardless of advances in technology that make it easy for others to invade privacy.

69. The U.K. offence and proposed N.Z. offence also do not use the "reasonable expectations" test but instead apply when the person "is in a place which, in the circumstances, would reasonably be expected to provide privacy".

70. Also, while the U.S.A. federal offence applies "under circumstances in which the individual has a reasonable expectation of privacy", the meaning of that phrase has been specifically defined in the legislation, presumably with intent to prevent the problems referred to above. The legislation states the phrase "means -

(A) circumstances in which a reasonable person would believe that he or she could disrobe in privacy, without being concerned that an image of a private area of the individual was being captured; or
(B) circumstances in which a reasonable person would believe that a private area of the individual would not be visible to the public, regardless of whether that person is in a public or private place.
"

71. We consider the N.S.W. phrasing is preferable to any of the above, although even use of it could be found to result in inappropriate loopholes, for example, as discussed in relation to consent below.

Consent

72. We submit the express consent of the person filmed (as referred to in the above proposed offence) should be necessary in relation to making of intimate visual recordings of the types described above. We are concerned that unless express consent is required, any test relating to reasonable expectations of being afforded privacy, could be readily avoided by the posting of notices in public changing rooms, toilets, etc. stating for example that "Video surveillance equipment is in use in these premises".

73. We expect a requirement for express consent would not result in inappropriate prohibition on taking photographs that involve nudity in public, for example of people who participate in mass nude protests, mass nude art, or demonstrate or protest by running naked through the streets[20], etc, because a reasonable person could not reasonably expect to be afforded privacy when engaging in such public nudity. We would also expect that such an offence would not capture the tourist and family type photographs taken by general visitors to beaches where some women may be topless and may be incidentally visible in the background of photographs of someone or something else. We expect such photographs would not be caught because a reasonable person could not reasonably expect to be afforded privacy from being incidentally recorded in photographs when choosing to be naked or partly naked on public beaches. However, even if it can be successfully so argued, we expect such photographs would not be caught because it would generally not be provable beyond a reasonable doubt that the photographer's intention was to make a recording of a person in the background, that is, of a person who is not obviously the subject of the photograph. In instances where such an intention may be provable, for example making a visual recording from a long distance with the intent of making enlarged images a particular person, it would in our view be appropriate for the offence to apply.

74. We also expect that a requirement for consent would not adversely affect media reporting of events that it is in the public interest (which is not synonymous with of interest to the public) to report. While there is a narrow range of such events that could involve photographing nudity in public, the circumstances would be such that there is no reasonable expectation of being afforded privacy. For example, the world famous photograph of a 9 year old girl running naked down a street fleeing a napalm attack during the war in South Vietnam.

5.1.3.2 Installing devices to facilitate making intimate visual recordings

75. EFA considers that it should also be an offence to install devices to facilitate making recordings of the above nature, for example, similar to the Section 21H of the NSW Summary Offences Act which states:

"Any person who installs any device, or constructs or adapts the fabric of any building, vehicle, vessel, tent or temporary structure for the purpose of facilitating the installation or operation of any device, with the intention of enabling that or any other person to commit an offence under section 21G is guilty of an offence."

5.1.3.3 Publication/distribution of intimate visual recordings

76. It should be an offence to publish, distribute, circulate, sell, advertise or make available a visual recording of the types described in (a) and (b) above knowing that the recording was made without the person's consent. This would deal with publication, etc., by the person who made the recording because they would certainly know that.

77. Furthermore, as recognised in the Discussion Paper (para 42), a person who consented to the making of a recording of them should not be assumed to have also consented to that recording being published, or made available in any other way to other persons. Hence, it should also be an offence to publish, distribute, circulate, sell, advertise or make available a visual recording of the types described in (a) and (b) above unless the person consents to the publication, etc., of the recording.

Exceptions

78. Obviously any offences concerning distribution/publication etc. without consent should not be applicable to "innocent distributors", that is, persons who are not able to know the content of material distributed through their systems by other people, such as Internet Servicer Providers. We consider such exceptions should be to the same effect as those contained in Section 474.13 of the Criminal Code Act 1995 (Cth)[21] (effective from March 2005) which states:

"For the purposes of this Subdivision, a person is taken not to use a carriage service by engaging in particular conduct if:
(a) the person is a carrier and, in engaging in that conduct, is acting solely in the person's capacity as a carrier; or
(b) the person is a carriage service provider and, in engaging in that conduct, is acting solely in the person's capacity as a carriage service provider; or
(c) the person is an Internet service provider and, in engaging in that conduct, is acting solely in the person's capacity as an Internet service provider; or
(d) the person is an Internet content host and, in engaging in that conduct, is acting solely in the person's capacity as an Internet content host.
"

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5.1.4 Take down notices (s6.1.1.4)

79. We note the view expressed in the Discussion Paper that if a new offence as outlined in Section 6.1.1.1 or 6.1.1.2 of the paper is created "there will need to be a mechanism for removal of the images in question from the Internet" and the reference to the take down scheme applicable to Internet Service Providers ("ISPs") and Internet Content Hosts ("ICHs") in relation to content hosted on Australian sites under Schedule 5 of the Commonwealth Broadcasting Services Act 1992 (para 156).

80. EFA doubts that any special take down scheme would be necessary in relation to material published on Australian hosted sites in breach of criminal law. We expect that generally speaking individuals who are charged with a criminal offence would remove the material, or arrange to have it removed, themself rather than leave the material publicly available and risk a higher penalty arising from aggravating factors.

81. In the event that a defendant refused to remove the material, we expect Australian ISPs and ICHs would remove the material on formal notification from a criminal law enforcement agency (police) that criminal charges had been laid in relation to that material because the material would be in breach of the ISPs/ICHs Terms and Conditions of Acceptable Use (T&Cs). We would be surprised if there are any Australian ISPs and ICHs whose T&Cs do not prohibit use of their service for purposes in breach of criminal law. It should be noted however that material would not necessarily be in breach of a particular ISPs/ICHs T&Cs unless the offence is an offence in all States and Territories, and we understand from the Discussion Paper that the current intention is that, if new offences are to be created, Commonwealth or uniform State/Territory laws would be enacted.

82. In relation to the take down scheme under the Commonwealth Broadcasting Services Act 1992, we note that it is designed to enable the Australian Communications and Media Authority ("ACMA") to order ISPs/ICHs to take-down material deemed "offensive" or unsuitable for minors under Commonwealth law that has been made available by people who have not necessarily breached criminal, or any other, law in so doing. Whether or not criminal conduct was engaged in depends on State or Territory law, not Commonwealth law.

83. If a special take down scheme were to be considered necessary, we would be opposed to either the ACMA or the OFLC deciding whether or not material should be taken down on the grounds that it breaches a law containing a test of reasonable expectations of privacy because they are not specialists in privacy issues. The appropriate regulator would be a Privacy Commissioner who would need to be appropriately funded.

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5.2 Civil Law (s6.1.2)

5.2.1 Rights to control use of one's image

84. The Discussion Paper asks:

"(3) Should consent be required for photographs used for particular purposes?
(5) Should there be some enforceable civil right in relation to the use of your image? If so, on what basis?
"
and suggests:
"6.2.2 Other remedies
161. A process could be established whereby individuals may request that their image be recovered from a website. For instance, if the person in question objects to the context. For example, it might be personally offensive to be associated with a product that an individual finds objectionable - such as tobacco or alcohol. This would give some control to individuals if they wish to exercise it but removes the need for consent in every situation.
"

85. EFA is of the view that individuals should have rights to control use of their image (when it is an image of the person in particular, not where the person is one of a crowd), and that such rights should not be limited to the context of use on a web site. Such rights should include a requirement for prior consent for some purposes (for example exploitation for commercial purposes), and an enforceable civil right to restrain use of their image (including removal from a website) in some circumstances.

86. However, defining the relevant purposes, circumstances and boundaries of such rights involves even more complex issues than those applicable to images of an intimate private nature. We have not had sufficient time and resources during the consultation period to adequately identify and consider the competing interests that would need to be balanced in formulating such rights. Further, establishment of such rights would affect many more stakeholders than are likely to have heard of, or taken an interest in, the topic of the current Discussion Paper.

87. We therefore submit that rights to use of one's image should be made the topic of separate public inquiry. We note that the Victorian Law Reform Commission ("VLRC") is soon to commence the second stage of its Privacy Reference which we understand includes the issue of use of individuals' photographs without consent. The VLRC inquiry may be suitable for advancing public debate and discussion on this important issue, if the VLRC's terms of reference and funding enable it to seek and consider submissions from persons in all parts of Australia. We also note the Senate Legal and Constitutional References Committee recently recommended that the Australian Law Reform Commission ("ALRC") be authorised to undertake a wide review regarding privacy in the 21st century because the Privacy Act 1988 (C'th) "is not proving to be an effective or appropriate mechanism to protect the privacy of Australians"[22].

88. EFA doubts, however, that special legislation granting civil rights merely in relation to use of one's image would be a practical, appropriate and adequate response to individuals' privacy concerns in the current Australian regulatory environment. We consider such legislation likely to be highly complex due to the inadequacy of the existing privacy protection regime and resultant need to define potentially numerous types of images in relation to which individuals should have a right to control use, or use should be prohibited without consent, most of which would be more appropriately dealt with by legislation of general application (not necessarily limited to images) relevant to the particular circumstances.

89. For example, there are at least three circumstances (other than intimate private photographs discussed earlier herein) in which the taking or use of photographs of individuals without consent should, in EFA's view, be legislatively regulated. Notably, the ALRC recommended over twenty years ago, that legislation be introduced to deal with these circumstances. These are:

  1. Optical surveillance in non-public places

    90. The ALRC recommended in its Privacy Report[23] that it be made an offence to "use a surveillance device to observe or photograph the activities of a person, being activities carried on in a place that is not a public place and in such circumstances that the second-mentioned person would have assumed on reasonable grounds that the activities would not be observed by the first-mentioned person".

    91. However, to date, only two States and one Territory have enacted similar legislation restricting the use of optical surveillance devices without consent in private places.

    92. We also draw attention to concerns raised by the NSW Privacy Commissioner in response to a NSW Law Reform Commission report on surveillance, regarding complaints about surveillance made to the Commissioner's office:

    "The most common relationship between the complainant and the respondent was as the respondent's neighbour (54%), as the subject of the respondent's investigation (15%), or as an interested member of the public (15%).

    I am concerned by the extent to which 'domestic' users of surveillance see themselves as protecting the 'public' interest by conducting surveillance on their neighbours. It is therefore imperative that clear limits be placed upon what 'lawful functions' may be contemplated by 'domestic' users of surveillance, and the extent to which surveillance is reasonably necessary for the pursuit of those functions.

    The Act (or regulations) ought prescribe that, for example, overt surveillance in the pursuit of 'protection of the person' or 'protection of property' can only operate on a person's own property, including entrances and exits. Overt surveillance of neighbouring properties (other than incidental capture) should not be permitted by 'domestic' users at all, notwithstanding the 'vigilante' stance adopted by some surveillance users currently."[24]

  2. Appropriation of name, identity or likeness (e.g. image)

    93. The ALRC recommended in its Unfair Publication Report[25] that a person whose name, identity, reputation or likeness is appropriated should have "a right of action against the person who appropriated his name, identity or likeness and against each person who, knowing of the appropriation, has used the appropriation for his own benefit or to the detriment of the first-mentioned person". The ALRC also recommended that:

    "(1) ... a person shall be regarded as having appropriated the name, identity or likeness of another person if he, with intent to exploit for his own benefit, the name, identity, reputation or likeness of that other person and without the consent of that other person, publishes matter containing the name, identity or likeness of that other person-
    (a) in advertising or promoting the sale, leasing or use of property or the supply of services; or
    (b) for the purpose of supporting candidature for office.

    (2) The publication of mere information or comment about a person shall not be regarded as an appropriation of the name, identity, reputation or likeness of that person."

    94. The Commission also remarked that "[t]o eliminate the risk of such a provision unwittingly restricting expression it seems desirable to limit the remedy to cases of exploitation for commercial purposes, including career and public advancement". However, in view of the publication technologies that have emerged since the recommendations were made, it would be appropriate to consider whether exploitation for some other purposes of benefit to the publisher, or to the detriment of the individual, should be covered.

    95. It is also notable that the Commission advised that: "No contrary opinion has been put to the Commission. Even those generally opposed to privacy protection have supported legislation on appropriation."

  3. Health, private behaviour, home life or personal or family relationships

    96. The ALRC recommended in its Unfair Publication Report[26] that an individual should have a civil right of action against a person who "publishes sensitive private facts concerning an individual", that is, publication of "matter relating or purporting to relate to the health, private behaviour, home life or personal or family relationships of the individual in circumstances in which the publication is likely to cause distress, annoyance or embarrassment to an individual in the position of the first-mentioned individual".

    97. The Commission noted that "In many cases publication, without consent, of a photograph taken in a private place would be a publication relating to the private behaviour, home life or personal relationships of an individual; as such it would be covered by the category [above]".

    98. The ALRC also recommended that defences be widely framed so as to allow a defendant to raise all matters which may legitimately excuse publication, in particular covering: consent; triviality/accident; legal authority; absolute privilege, limited privilege, protected dissemination; fair, accurate and contemporaneous report (of proceedings open to the public of any Parliament, tribunal or local government authority); reasonable protection (for the personal safety, or the protection of the property, of any person); or that the publication was relevant to a topic of public interest.

99. EFA agrees with the view expressed in the ALRC report that a defence of a publication being relevant to "a topic of public interest" requires definition of that phrase to provide a significant level of certainty for publishers and reduce the potential for inappropriate privacy invasion arising from a mistaken belief that "of interest to the public" is synonymous with "in the public interest". EFA also supports the definition proposed in the ALRC's report:

"(3) For the purposes of this Act, a statement or comment shall be regarded as being on a topic of public interest and the publication of private facts shall be regarded as being relevant to a topic of public interest where the matter in the statement or comment or the private facts, as the case may be-
(a)related to the public, commercial or professional activities, including proposed activities, of a person;
(b)related to the suitability or candidature of a person for public, commercial or professional office;
(c)was or were relevant to a decision taken, or then likely to be taken, on a public, commercial or professional question by any person who occupied, or was a candidate for election or appointment to, an office;
(d)related to any property or services offered to the public;
(e)was or were facts the publication of which were necessary or desirable for-
(i) the apprehension of an offender;
(ii) the enforcement of the law;
(iii) the protection of public health or public safety; or
(iv) discussion on a matter relating to public administration or the administration of justice; or
(f)was or were otherwise of legitimate concern to the general public or to any section of the public.
(4) The publication of matter or of private facts merely for the purpose of arousing prurient or morbid curiosity shall not be regarded for the purposes of this Act as being a publication on a topic of public interest."

100. EFA submits that legislation regulating use of optical surveillance devices to observe or photograph individuals in private places (e.g. at their homes) is long overdue in those States/Territories that have not enacted same.

101. We also submit that the matters outlined in items (ii) and (iii) above should be canvassed and considered as part of another public inquiry with an objective of defining the civil rights individuals should have to control use/publication of their image, and sensitive private information about them.

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6. Conclusion

102. The National Classification Scheme is completely unsuitable for dealing with what is in fact an issue of privacy and/or lack of control over use of one's own image. The scheme should not be broadened to include a test of "offensiveness" arising from the circumstances of use of an image that is not itself offensive.

103. No new criminal offences dealing specifically with depictions of children are necessary.

104. Circumstances exist in which individuals reasonably expect to be afforded privacy in "public places" for example, in toilets, changing rooms, etc. and also in relation to "private parts" of the body that would not be exposed to view except as a result of filming from underneath and/or through clothing.

105. Criminal offences to provide individuals with protection from intimate filming, and publication/distribution of resultant images, without consent in circumstances in which a reasonable person would reasonably expect to be afforded privacy, should be created to fill the significant gap that currently exists in the laws of most Australian jurisdictions.

106. A separate public inquiry should be conducted with an objective of defining the civil rights individuals should have to control use/publication of their image, and sensitive private information about them.

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7. References

1. Unauthorised Photographs on the Internet And Ancillary Privacy Issues: Discussion Paper, Standing Committee of Attorneys-General, August 2005.
<http://www.ag.gov.au/agd/WWW/agdHome.nsf/Page/Publications_2005_Internet_Photos_Discussion_Paper>

2. Vodafone in row over 'peeping tom' phone cameras, The Times Online, 23 Oct 2004.
<http://www.timesonline.co.uk/article/0,,2-1324268_1,00.html>
    "THE world's biggest mobile phone company was embroiled in a row last night over an 'X-ray' mobile camera attachment that allows peeping toms to see through clothes.
Vodafone is deeply unhappy about a new infrared 'night filter', made in Japan, which is fitted to its phones and causes skirts, trousers, shirts and blouses to melt away. Users said it is particularly effective on dark bikinis.
Dubbed the 'pervert filter', the device is made by a Fukui-based company called Yamada Denshi, and can be purchased for less than 100 over the internet. ...
"

3. Landlord films boarders in shower; Video voyeur jailed, The Herald Sun, 13 Jun 2003.

4. The Price of Fame : Protection of Personality Rights in Australia, David Bowman, Communications Law Bulletin, Vol 22 No 2 2003.
<http://www.camla.org.au/clb/CLB%20-%20Volume%2022,%20Issue%202.pdf>

5. ALRC Report No. 11 - Unfair publication: defamation and privacy, Australian Law Reform Commission, 1979.
<http://www.austlii.edu.au/au/other/alrc/publications/reports/11/>

6. EFA submission to the Commonwealth Attorney-General's Department re Exposure Draft of the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Bill 2004, 12 April 2004.
<http://www.efa.org.au/Publish/efasubm-agd-teleco.html>

7. EFA submission to the Senate Legal & Constitutional Legislation Committee Inquiry into Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Bill (No. 2) 2004, 6 August 2004.
<http://www.efa.org.au/Publish/efasubm-slclc-telecoffences.html>

8. Classification (Publications, Films And Computer Games) Act 1995 (Cth), Section 38 Limit On Reclassification
<http://www.austlii.edu.au/au/legis/cth/consol_act/cfacga1995489/s38.html>

9. Under the Administrative Decisions (Judicial Review) Act 1977 (Cth), the review Court has no power to review a classification decision on the merits , only whether or not the Classification Board erred in law in its construction of, or application of, the National Classification Code. If the Board's conclusions were "reasonably open to it" there could not be a finding of error. See discussion in:
Michael Brown & Ors v Members of the Classification Review Board of the Office of Film and Literature [1998] 319 FCA, 24 March 1998.
<http://www.austlii.edu.au/au/cases/cth/federal_ct/1998/319.html>
Michael Brown, Melita Berndt, Ben Ross, Valentina Srpcanska v the members of the Classification Review Board of the Office of Film and Literature Classification [1997] 474 FCA, 6 June 1997.
<http://www.austlii.edu.au/au/cases/cth/federal_ct/1997/474.html>

10. Classification (Publications, Films And Computer Games) Regulations (Cth), Schedule 2, Fees for Review of a Decision
<http://www.austlii.edu.au/au/legis/cth/consol_reg/cfacgr598/sch2.html>

11. See, for a few examples:

Perverts go hi-tech, Herald Sun (Melbourne); 15 February 2002
"[Crawford] plans to contest those charges, arguing that his actions in filming the victims did not amount to stalking them."

Man who filmed up skirts found guilty of stalking, AAP General News; 28 June 2002
"...Magistrate Peter Power today ruled that Crawford had only stalked the women whom he filmed more than once...."

Serial video pervert freed after 17 days; Women, young girls unwitting targets, Herald Sun (Melbourne), 19 August 2003 (guilty plea to an unstated offence).

Shoe-camera used to film up skirts, Courier Mail (Brisbane), 10 February 2004 (guilty plea to offensive behaviour).

Man who filmed up skirts walks free, Herald Sun (Melbourne), 18 August 2004.

Peeping Tom found under the toilet seat, Cairns Post, 30 March 2005.
"Fear of spiders and quick police action have resulted in the arrest of a man alleged to have used a mirror to view a woman while she was using the toilet at a popular swimming area near Babinda. ... A 62-year-old Cairns man has since been charged with committing an indecent act and further charges may follow."

Qld: Peeping Tom loophole to be closed: Qld govt, AAP Australian National News Wire, 23 August 2005 "...Last year, Crown prosecutor Sal Vasta told a Brisbane District Court laws needed to be rewritten to deal with spy cameras after a man, 69, used a camera hidden behind a bathroom mirror to secretly film his pregnant stepdaughter while she was naked.
Mr Vasta told the court at the time it had been difficult to see what crime the man, who pleaded guilty to stalking, could be charged with.
'It's a case where modern technology is ahead of the criminal law,' Mr Vasta said.
In another case last April, a man who allegedly took photos up women's skirts using a mobile phone camera in shopping centres was charged with committing an indecent act."

12. NSW Legislative Assembly Hansard, Crimes Legislation Amendment Bill, Second Reading, 10 March 2004.
<http://www.parliament.nsw.gov.au/prod/parlment/hansart.nsf/V3Key/LA20040310004>
Man admits to secretly filming room mate, The World Today, ABC Radio, 30 August 2002.
"In a Sydney magistrate's court, a 47-year-old man has been acquitted after admitting he had invaded his flatmates privacy by secretly videoing her in the shower and on the toilet.
The police claimed it was an act of indecency. But the magistrate didn't agree."
<http://www.abc.net.au/worldtoday/stories/s663135.htm>

13. New Zealand Crimes (Intimate Covert Filming) Amendment Bill, Text of Bill as amended by Committee & Committee Report, tabled 1 August 2005.
<http://www.clerk.parliament.govt.nz/Content/SelectCommitteeReports/257bar2.pdf>

New Zealand Crimes (Intimate Covert Filming) Amendment Bill, First reading speech, 5 May 2005.
<http://www.beehive.govt.nz/ViewDocument.aspx?DocumentID=22916>

New Zealand Law Society, Submission to Committee, 2005.
<http://www.nz-lawsoc.org.nz/general/submissions/Crimes%20(Intimate%20Covert%20Filming)%20Amdmt.htm>

New Zealand Law Commission, Intimate Covert Filming Study Paper, 1 June 2004.
<http://www.lawcom.govt.nz/ProjectStudyPapers.aspx?ProjectID=105>

14. Canada Bill C-2 An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, Section 162 - Voyeurism. (First Reading 8 October 2004. Assented to 20 July 2005).
<http://www.parl.gc.ca/38/1/parlbus/chambus/house/bills/government/C-2/C-2_4/ C-2-3E.html>

Canada Bill C-2 Legislative History: Parliamentary Debates and Committee Reports, etc.
<http://www.parl.gc.ca/LEGISINFO/index.asp?Lang=E&Chamber=N&StartList= A&EndList=Z&Session=13&Type=0&Scope=I&query=4199&List=stat>

15. U.S.A. Video Voyeurism Prevention Act of 2004, Public Law 108-495 108th Congress. (Signed December 2004).
<http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=108_cong_public_laws&docid=f:publ495.108>

16. N.S.W. Summary Offences Act 1988, Part 3B
Section 21G
<http://www.austlii.edu.au/au/legis/nsw/consol_act/soa1988189/s21g.html>
Section 21H
<http://www.austlii.edu.au/au/legis/nsw/consol_act/soa1988189/s21h.html>

17. Department of Justice Canada, Voyeurism as a Criminal Offence: A Consultation Paper, 2002.
<http://canada.justice.gc.ca/en/cons/voy/index.html>

18. U.K. Sexual Offences Act 2003, Section 67 (Voyeurism)
<http://www.opsi.gov.uk/acts/acts2003/30042--b.htm#67>

19. NSW Privacy Commisioner's Submission on the NSW Law Reform Commission Report 98, Surveillance: An Interim Report, 24 June 2002.
<http://www.lawlink.nsw.gov.au/lawlink/privacynsw/ll_pnsw.nsf/vwFiles/sub_surveillance2002.pdf/$file/sub_surveillance2002.pdf>

20. New Zealand lawmaker to run naked through streets after rival's election win, Mainichi Daily News, 19 Sep 2005
<http://mdn.mainichi-msn.co.jp/international/news/20050919p2g00m0in011000c.html>

21. Criminal Code Act 1995 (Cth), Section 474.13
<http://www.austlii.edu.au/au/legis/cth/consol_act/cca1995115/sch1.html>

22. The real Big Brother: Inquiry into the Privacy Act 1988, Senate Legal and Constitutional References Committee, June 2005
<http://www.aph.gov.au/senate/committee/legcon_ctte/privacy/report/index.htm>

23. ALRC Report No. 22 - Privacy, Australian Law Reform Commission, 1983.
<http://www.austlii.edu.au/au/other/alrc/publications/reports/22/>

24. See Note 19.

25. See Note 5.

26. See Note 5.

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8. About EFA

Electronic Frontiers Australia Inc. ("EFA") is a non-profit national organisation representing Internet users concerned with on-line rights and freedoms. EFA was established in January 1994 and incorporated under the Associations Incorporation Act (S.A.) in May 1994.

EFA is independent of government and commerce, and is funded by membership subscriptions and donations from individuals and organisations with an altruistic interest in promoting online civil liberties. EFA members and supporters come from all parts of Australia and from diverse backgrounds.

Our major objectives are to protect and promote the civil liberties of users of computer based communications systems (such as the Internet) and of those affected by their use and to educate the community at large about the social, political and civil liberties issues involved in the use of computer based communications systems.

EFA policy formulation, decision making and oversight of organisational activities are the responsibility of the EFA Board of Management. The ten elected Board Members act in a voluntary capacity; they are not remunerated for time spent on EFA activities. The role of Executive Director was established in 1999 and reports to the Board.

EFA has presented written and oral testimony to Parliamentary Committee and government agency inquiries into numerous Internet and telecommunications related matters, including censorship, amendments to the Privacy Act 1988 (Cth) to cover the private sector, telecommunications interception laws, cybercrime, spam, copyright, etc. EFA's Executive Director was an invited member of the Federal Privacy Commissioner's National Privacy Principles Guidelines Reference Group and the Research Reference Committee (2001) and the Privacy Consultative Group (2004-2005). EFA participated in NOIE's Privacy Impact Assessment Consultative Group relating to the development of a Commonwealth Government Authentication Framework (2003), Centrelink's Voice Authentication Initiative Privacy Impact Assessment Consultative Group (2004), the ENUM Privacy and Security Working Group convened by the Australian Communications and Media Authority ("ACMA") (2003-2005), and the Australian Communications Authority's Consumer Consultative Forum meeting (April 2005).

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