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This is a Bill, not an Act. For current law, see the Acts databases.
2016-2017
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Enhancing Online Safety
(Non-consensual Sharing of Intimate
Images) Bill 2017
No. , 2017
(Communications and the Arts)
A Bill for an Act to amend the Enhancing Online
Safety Act 2015, and for other purposes
No. , 2017
Enhancing Online Safety (Non-consensual Sharing of Intimate Images)
Bill 2017
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments
3
Broadcasting Services Act 1992
3
Enhancing Online Safety Act 2015
3
No. , 2017
Enhancing Online Safety (Non-consensual Sharing of Intimate Images)
Bill 2017
1
A Bill for an Act to amend the Enhancing Online
1
Safety Act 2015, and for other purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the Enhancing Online Safety (Non-consensual Sharing
5
of Intimate Images) Act 2017.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Enhancing Online Safety (Non-consensual Sharing of Intimate Images)
Bill 2017
No. , 2017
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Amendments Schedule 1
No. , 2017
Enhancing Online Safety (Non-consensual Sharing of Intimate Images)
Bill 2017
3
Schedule 1--Amendments
1
2
Broadcasting Services Act 1992
3
1 After paragraph 169A(a)
4
Insert:
5
(aa) section 19C of the Enhancing Online Safety Act 2015; or
6
Enhancing Online Safety Act 2015
7
2 Section 3
8
After:
9
(b)
administering a complaints system for cyber-bullying
10
material targeted at an Australian child; and
11
insert:
12
(ba)
administering a complaints and objections system for
13
non-consensual sharing of intimate images; and
14
3 At the end of section 3
15
Add:
16
•
The complaints and objections system for non-consensual
17
sharing of intimate images includes the following
18
components:
19
(a)
a person who posts, or threatens to post, an intimate
20
image may be liable to a civil penalty;
21
(b)
the provider of a social media service, relevant
22
electronic service or designated internet service may be
23
given a notice (a removal notice) requiring the provider
24
to remove an intimate image from the service;
25
(c)
an end-user of a social media service, relevant electronic
26
service or designated internet service who posts an
27
intimate image on the service may be given a notice (a
28
Schedule 1 Amendments
4
Enhancing Online Safety (Non-consensual Sharing of Intimate Images)
Bill 2017
No. , 2017
removal notice) requiring the end-user to remove the
1
image from the service;
2
(d)
a hosting service provider who hosts an intimate image
3
may be given a notice (a removal notice) requiring the
4
provider to cease hosting the image.
5
4 Section 4
6
Insert:
7
consent, when used in relation to an intimate image, has the
8
meaning given by section 9E.
9
data storage device means any article or material (for example, a
10
disk) from which information is capable of being reproduced, with
11
or without the aid of any other article or device.
12
designated internet service has the meaning given by section 9A.
13
exempt post, when used in relation to an intimate image, has the
14
meaning given by section 44M.
15
hosting service has the meaning given by section 9C.
16
hosting service provider means a person who provides a hosting
17
service.
18
internet carriage service has the same meaning as in Schedule 5 to
19
the Broadcasting Services Act 1992.
20
intimate image has the meaning given by section 9B.
21
objection notice means a notice under section 19B.
22
on-demand program service has the meaning given by section 9D.
23
5 Section 4 (definition of posted)
24
Omit "or relevant electronic service", substitute ", relevant electronic
25
service or designated internet service".
26
6 Section 4 (at the end of the definition of posted)
27
Add:
28
Amendments Schedule 1
No. , 2017
Enhancing Online Safety (Non-consensual Sharing of Intimate Images)
Bill 2017
5
Note:
Other parts of speech and grammatical forms of "posted" (for
1
example, "post") have a corresponding meaning (see section 18A of
2
the Acts Interpretation Act 1901).
3
7 Section 4 (definition of provided)
4
Omit "or relevant electronic service", substitute ", relevant electronic
5
service or designated internet service".
6
8 Section 4 (definition of provider)
7
Omit "or relevant electronic service", substitute ", relevant electronic
8
service or designated internet service".
9
9 Section 4
10
Insert:
11
removal notice means a notice under section 44D, 44E or 44F.
12
10 Section 4 (definition of removed)
13
Omit "or relevant electronic service", substitute ", relevant electronic
14
service or designated internet service".
15
11 Section 4
16
Insert:
17
stored material means material kept on a data storage device. For
18
this purpose, disregard any storage of material on a highly
19
transitory basis as an integral function of the technology used in its
20
transmission.
21
Note:
Momentary buffering (including momentary storage in a router in
22
order to resolve a path for further transmission) is an example of
23
storage on a highly transitory basis.
24
threat includes a threat made by any conduct, whether express or
25
implied and whether conditional or unconditional.
26
12 Section 6 (heading)
27
Repeal the heading, substitute:
28
Schedule 1 Amendments
6
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No. , 2017
6 When material is provided on a social media service, relevant
1
electronic service or designated internet service
2
13 Section 6
3
Omit "or relevant electronic service", substitute ", relevant electronic
4
service or designated internet service".
5
14 Section 7 (heading)
6
Repeal the heading, substitute:
7
7 When material is posted by an end-user of a social media service,
8
relevant electronic service or designated internet service
9
15 Section 7
10
Omit "or relevant electronic service", substitute ", relevant electronic
11
service or designated internet service".
12
16 Section 8 (heading)
13
Repeal the heading, substitute:
14
8 When material is removed from a social media service, relevant
15
electronic service or designated internet service
16
17 Section 8
17
Omit "or relevant electronic service", substitute ", relevant electronic
18
service or designated internet service".
19
18 After section 9
20
Insert:
21
9A Designated internet service
22
(1) For the purposes of this Act, designated internet service means:
23
(a) a service that allows end-users to access material using an
24
internet carriage service; or
25
(b) a service that delivers material to persons having equipment
26
appropriate for receiving that material, where the delivery of
27
the service is by means of an internet carriage service;
28
Amendments Schedule 1
No. , 2017
Enhancing Online Safety (Non-consensual Sharing of Intimate Images)
Bill 2017
7
but does not include:
1
(c) a social media service; or
2
(d) a relevant electronic service; or
3
(e) an on-demand program service; or
4
(f) a service specified under subsection (2).
5
(2) The Minister may, by legislative instrument, specify one or more
6
services for the purposes of paragraph (1)(f).
7
9B Intimate image
8
(1) This section sets out the circumstances in which material is an
9
intimate image of a person for the purposes of this Act.
10
Depiction of private parts
11
(2) Material is an intimate image of a person if:
12
(a) the material consists of a still visual image or moving visual
13
images; and
14
(b) the material depicts, or appears to depict:
15
(i) the person's genital area or anal area (whether bare or
16
covered by underwear); or
17
(ii) if the person is female or a transgender or intersex
18
person identifying as female--either or both of the
19
person's breasts;
20
in circumstances in which an ordinary reasonable person
21
would reasonably expect to be afforded privacy.
22
Depiction of private activity
23
(3) Material is an intimate image of a person if:
24
(a) the material consists of a still visual image or moving visual
25
images; and
26
(b) the material depicts, or appears to depict, the person:
27
(i) in a state of undress; or
28
(ii) using the toilet; or
29
(iii) showering; or
30
(iv) having a bath; or
31
Schedule 1 Amendments
8
Enhancing Online Safety (Non-consensual Sharing of Intimate Images)
Bill 2017
No. , 2017
(v) engaged in a sexual act of a kind not ordinarily done in
1
public; or
2
(vi) engaged in any other like activity;
3
in circumstances in which an ordinary reasonable person
4
would reasonably expect to be afforded privacy.
5
Depiction of person without attire of religious or cultural
6
significance
7
(4) Material is an intimate image of a person if:
8
(a) the material consists of a still visual image or moving visual
9
images; and
10
(b) because of the person's religious or cultural background, the
11
person consistently wears particular attire of religious or
12
cultural significance whenever the person is in public; and
13
(c) the material depicts, or appears to depict, the person:
14
(i) without that attire; and
15
(ii) in circumstances in which an ordinary reasonable
16
person would reasonably expect to be afforded privacy.
17
Interpretative provisions
18
(5) For the purposes of this section, it is immaterial whether material
19
has been altered.
20
(6) For the purposes of this section, if material depicts, or appears to
21
depict, a part of the body of a person, the material is taken to depict
22
the person, or to appear to depict the person, as the case requires.
23
9C Hosting service
24
For the purposes of this Act, if:
25
(a) a person (the first person) hosts stored material that has been
26
posted on:
27
(i) a social media service; or
28
(ii) a relevant electronic service; or
29
(iii) a designated internet service; and
30
(b) the first person or another person provides:
31
(i) a social media service; or
32
Amendments Schedule 1
No. , 2017
Enhancing Online Safety (Non-consensual Sharing of Intimate Images)
Bill 2017
9
(ii) a relevant electronic service; or
1
(iii) a designated internet service;
2
on which the hosted material is provided;
3
the hosting of the stored material by the first person is taken to be
4
the provision by the first person of a hosting service.
5
9D On-demand program service
6
(1) For the purposes of this Act, on-demand program service means a
7
service:
8
(a) that is provided to end-users using an internet carriage
9
service; and
10
(b) to the extent to which the service provides material that is
11
identical to a program that has been, or is being, transmitted
12
on:
13
(i) a commercial television broadcasting service provided
14
under a commercial television broadcasting licence; or
15
(ii) a subscription television broadcasting service provided
16
under a subscription television broadcasting licence; or
17
(iii) a subscription television narrowcasting service; or
18
(iv) a television broadcasting service provided by the
19
Australian Broadcasting Corporation; or
20
(v) a television broadcasting service provided by the
21
Special Broadcasting Service Corporation.
22
(2) For the purposes of subsection (1), in determining whether material
23
is identical to a program, disregard any differences that are
24
attributable to the technical characteristics of the provision or
25
transmission (for example, video resolution or sound quality).
26
(3) For the purposes of subsection (1), in determining whether material
27
is identical to a program, disregard the presence or absence of:
28
(a) a watermark-type logo; or
29
(b) a watermark-type insignia.
30
(4) An expression used in paragraph (1)(b) has the same meaning in
31
that paragraph as it has in the Broadcasting Services Act 1992.
32
Schedule 1 Amendments
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Enhancing Online Safety (Non-consensual Sharing of Intimate Images)
Bill 2017
No. , 2017
9E Consent
1
For the purposes of the application of this Act to an intimate
2
image, consent means consent that is:
3
(a) express; and
4
(b) voluntary; and
5
(c) informed;
6
but does not include:
7
(d) consent given by a child; or
8
(e) consent given by an adult who is in a mental or physical
9
condition (whether temporary or permanent) that:
10
(i) makes the adult incapable of giving consent; or
11
(ii) substantially impairs the capacity of the adult to give
12
consent.
13
19 Section 13
14
After:
15
(b)
administering a complaints system for cyber-bullying
16
material targeted at an Australian child; and
17
insert:
18
(ba)
administering a complaints and objections system for
19
non-consensual sharing of intimate images; and
20
20 Part 3 (heading)
21
Repeal the heading, substitute:
22
Part 3--Complaints and objections
23
21 Before section 17
24
Insert:
25
Division 1--Introduction
26
22 At the end of section 17
27
Add:
28
Amendments Schedule 1
No. , 2017
Enhancing Online Safety (Non-consensual Sharing of Intimate Images)
Bill 2017
11
•
There is a complaints and objections system for
1
non-consensual sharing of intimate images.
2
23 Before section 18
3
Insert:
4
Division 2--Complaints about cyber-bullying material
5
24 At the end of Part 3
6
Add:
7
Division 3--Complaints about, and objections to, intimate
8
images
9
19A Complaints
10
Complaint made by a person depicted in an intimate image
11
(1) If a person has reason to believe that section 44B has been
12
contravened in relation to an intimate image of the person, the
13
person may make a complaint to the Commissioner about the
14
matter.
15
(2) If the complainant is not able to identify the person who allegedly
16
contravened section 44B, the complainant must make a statement
17
to the Commissioner to that effect.
18
Complaint made on behalf of a person depicted in an intimate
19
image
20
(3) If a person (the authorised person) has reason to believe that
21
section 44B has been contravened in relation to an intimate image
22
of another person (the depicted person), the authorised person
23
may, on behalf of the depicted person, make a complaint to the
24
Commissioner about the matter, so long as:
25
(a) the depicted person has authorised the authorised person to
26
make a complaint about the matter; or
27
(b) both:
28
Schedule 1 Amendments
12
Enhancing Online Safety (Non-consensual Sharing of Intimate Images)
Bill 2017
No. , 2017
(i) the depicted person is a child who has not reached 16
1
years; and
2
(ii) the authorised person is a parent or guardian of the
3
depicted person; or
4
(c) both:
5
(i) the depicted person is in a mental or physical condition
6
(whether temporary or permanent) that makes the
7
depicted person incapable of managing his or her
8
affairs; and
9
(ii) the authorised person is a parent or guardian of the
10
depicted person.
11
(4) The authorised person must make a declaration to the
12
Commissioner to the effect that the authorised person is entitled to
13
make the complaint on behalf of the depicted person.
14
(5) If the authorised person is not able to identify the person who
15
allegedly contravened section 44B, the authorised person must
16
make a statement to the Commissioner to that effect.
17
19B Objection notice
18
Objection notice given by a person depicted in an intimate image
19
(1) If a person (the depicted person) has reason to believe that:
20
(a) an intimate image of the depicted person is, or has been,
21
provided on:
22
(i) a social media service; or
23
(ii) a relevant electronic service; or
24
(iii) a designated internet service; and
25
(b) the intimate image was posted on the service by an end-user
26
of the service; and
27
(c) the posting of the intimate image on the service did not
28
constitute an exempt post; and
29
(d) any of the following conditions is satisfied:
30
(i) the depicted person is ordinarily resident in Australia;
31
(ii) the end-user is ordinarily resident in Australia;
32
(iii) the intimate image is hosted in Australia by a hosting
33
service;
34
Amendments Schedule 1
No. , 2017
Enhancing Online Safety (Non-consensual Sharing of Intimate Images)
Bill 2017
13
the depicted person may give the Commissioner a notice (an
1
objection notice) objecting to the provision of the intimate image
2
on the service.
3
(2) The depicted person may give the objection notice even if the
4
depicted person consented to the posting of the intimate image on
5
the service.
6
Objection notice given on behalf of a person depicted in an
7
intimate image
8
(3) If a person (the authorised person) has reason to believe that:
9
(a) an intimate image of another person (the depicted person) is,
10
or has been, provided on:
11
(i) a social media service; or
12
(ii) a relevant electronic service; or
13
(iii) a designated internet service; and
14
(b) the intimate image was posted on the service by an end-user
15
of the service; and
16
(c) the posting of the intimate image on the service did not
17
constitute an exempt post; and
18
(d) any of the following conditions is satisfied:
19
(i) the depicted person is ordinarily resident in Australia;
20
(ii) the end-user is ordinarily resident in Australia;
21
(iii) the intimate image is hosted in Australia by a hosting
22
service;
23
the authorised person may, on behalf of the depicted person, give
24
the Commissioner a notice (an objection notice) objecting to the
25
provision of the intimate image on the service, so long as:
26
(e) the depicted person has authorised the authorised person to
27
give the objection notice; or
28
(f) both:
29
(i) the depicted person is a child who has not reached 16
30
years; and
31
(ii) the authorised person is a parent or guardian of the
32
depicted person; or
33
(g) both:
34
Schedule 1 Amendments
14
Enhancing Online Safety (Non-consensual Sharing of Intimate Images)
Bill 2017
No. , 2017
(i) the depicted person is in a mental or physical condition
1
(whether temporary or permanent) that makes the
2
depicted person incapable of managing his or her
3
affairs; and
4
(ii) the authorised person is a parent or guardian of the
5
depicted person.
6
(4) The authorised person must make a declaration to the
7
Commissioner to the effect that the authorised person is entitled to
8
give the objection notice on behalf of the depicted person.
9
(5) The authorised person may give the objection notice even if the
10
depicted person consented to the posting of the intimate image on
11
the service.
12
Transitional
13
(6) If an intimate image was posted on:
14
(a) a social media service; or
15
(b) a relevant electronic service; or
16
(c) a designated internet service;
17
before the commencement of this section, this section does not
18
apply to the intimate image unless the intimate image was provided
19
on the service after the commencement of this section.
20
19C Investigation of complaints
21
(1) The Commissioner may investigate a complaint made to the
22
Commissioner under section 19A.
23
(2) An investigation under this section is to be conducted as the
24
Commissioner thinks fit.
25
(3) The Commissioner may, for the purposes of an investigation,
26
obtain information from such persons, and make such inquiries, as
27
he or she thinks fit.
28
(4) Subsections (1), (2) and (3) have effect subject to Part 13 of the
29
Broadcasting Services Act 1992 (which confers certain
30
investigative powers on the Commissioner).
31
Amendments Schedule 1
No. , 2017
Enhancing Online Safety (Non-consensual Sharing of Intimate Images)
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15
Termination of investigation
1
(5) The Commissioner may terminate an investigation under this
2
section.
3
19D Commissioner's response to objection notices
4
If an objection notice is given to the Commissioner under
5
section 19B in relation to an intimate image, the Commissioner
6
may consider whether to give a removal notice in relation to the
7
intimate image.
8
25 Part 5 (heading)
9
Repeal the heading, substitute:
10
Part 5--End-user notices relating to cyber-bullying
11
material
12
26 After Part 5
13
Insert:
14
Part 5A--Non-consensual sharing of intimate
15
images
16
Division 1--Introduction
17
44A Simplified outline of this Part
18
•
A person who posts, or threatens to post, an intimate image
19
without the consent of the person depicted in the image may
20
be liable to a civil penalty.
21
•
The provider of a social media service, relevant electronic
22
service or designated internet service may be given a notice (a
23
removal notice) requiring the provider to remove an intimate
24
image from the service.
25
Schedule 1 Amendments
16
Enhancing Online Safety (Non-consensual Sharing of Intimate Images)
Bill 2017
No. , 2017
•
An end-user of a social media service, relevant electronic
1
service or designated internet service who posts an intimate
2
image on the service may be given a notice (a removal notice)
3
requiring the end-user to remove the image from the service.
4
•
A hosting service provider who hosts an intimate image may
5
be given a notice (a removal notice) requiring the provider to
6
cease hosting the image.
7
Division 2--Intimate images must not be posted without
8
consent etc.
9
44B Posting an intimate image
10
(1) A person (the first person) must not post, or make a threat to post,
11
an intimate image of another person (the second person) on:
12
(a) a social media service; or
13
(b) a relevant electronic service; or
14
(c) a designated internet service;
15
if:
16
(d) the first person is ordinarily resident in Australia; or
17
(e) the second person is ordinarily resident in Australia.
18
Civil penalty:
500 penalty units.
19
Consent
20
(2) Subsection (1) does not apply if the second person consented to the
21
posting of the intimate image by the first person.
22
Note:
In proceedings for a civil penalty order against a person for a
23
contravention of subsection (1), the person bears an evidential burden
24
in relation to the matter in this subsection (see section 96 of the
25
Regulatory Powers (Standard Provisions) Act 2014).
26
Depiction of second person without attire of religious or cultural
27
significance
28
(3) Subsection (1) does not apply if:
29
Amendments Schedule 1
No. , 2017
Enhancing Online Safety (Non-consensual Sharing of Intimate Images)
Bill 2017
17
(a) the intimate image is covered by subsection 9B(4) because it
1
depicts, or appears to depict, the second person without
2
particular attire of religious or cultural significance; and
3
(b) the first person did not know that, because of the second
4
person's religious or cultural background, the second person
5
consistently wears that attire whenever the second person is
6
in public.
7
Note:
In proceedings for a civil penalty order against a person for a
8
contravention of subsection (1), the person bears an evidential burden
9
in relation to the matter in this subsection (see section 96 of the
10
Regulatory Powers (Standard Provisions) Act 2014).
11
Exempt post
12
(4) Subsection (1) does not apply if the post of the intimate image is,
13
or would be, an exempt post.
14
Note:
In proceedings for a civil penalty order against a person for a
15
contravention of subsection (1), the person bears an evidential burden
16
in relation to the matter in this subsection (see section 96 of the
17
Regulatory Powers (Standard Provisions) Act 2014).
18
44C Formal warning
19
The Commissioner may issue a formal warning if a person
20
contravenes section 44B.
21
Division 3--Removal notices
22
44D Removal notice given to the provider of a social media service,
23
relevant electronic service or designated internet service
24
(1) If:
25
(a) an intimate image of a person is, or has been, provided on:
26
(i) a social media service; or
27
(ii) a relevant electronic service; or
28
(iii) a designated internet service; and
29
(b) the intimate image was posted on the service by an end-user
30
of the service; and
31
(c) the intimate image is the subject of:
32
Schedule 1 Amendments
18
Enhancing Online Safety (Non-consensual Sharing of Intimate Images)
Bill 2017
No. , 2017
(i) a complaint made to the Commissioner under
1
section 19A; or
2
(ii) an objection notice given to the Commissioner under
3
section 19B; and
4
(d) if subparagraph (c)(i) applies--the Commissioner is satisfied
5
that the person did not consent to the posting of the intimate
6
image on the service; and
7
(e) the posting of the intimate image on the service did not
8
constitute an exempt post;
9
the Commissioner may give the provider of the service a written
10
notice, to be known as a removal notice, requiring the provider to:
11
(f) take all reasonable steps to ensure the removal of the intimate
12
image from the service; and
13
(g) do so within:
14
(i) 48 hours after the notice was given to the provider; or
15
(ii) such longer period as the Commissioner allows.
16
(2) So far as is reasonably practicable, the intimate image must be
17
identified in the removal notice in a way that is sufficient to enable
18
the provider of the service to comply with the notice.
19
Notice of refusal to give a removal notice
20
(3) If the Commissioner decides to refuse to give a removal notice
21
under subsection (1), the Commissioner must give written notice of
22
the refusal to:
23
(a) if subparagraph (1)(c)(i) applies--the person who made the
24
complaint mentioned in that subparagraph; or
25
(b) if subparagraph (1)(c)(ii) applies--the person who gave the
26
objection notice mentioned in that subparagraph.
27
44E Removal notice given to an end-user
28
(1) If:
29
(a) an intimate image of a person is, or has been, provided on:
30
(i) a social media service; or
31
(ii) a relevant electronic service; or
32
(iii) a designated internet service; and
33
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(b) the intimate image was posted on the service by an end-user
1
of the service; and
2
(c) the intimate image is the subject of:
3
(i) a complaint made to the Commissioner under
4
section 19A; or
5
(ii) an objection notice given to the Commissioner under
6
section 19B; and
7
(d) if subparagraph (c)(i) applies--the Commissioner is satisfied
8
that the person did not consent to the posting of the intimate
9
image on the service; and
10
(e) the posting of the intimate image on the service did not
11
constitute an exempt post;
12
the Commissioner may give the end-user a written notice, to be
13
known as a removal notice, requiring the end-user to:
14
(f) take all reasonable steps to ensure the removal of the intimate
15
image from the service; and
16
(g) do so within:
17
(i) 48 hours after the notice was given to the end-user; or
18
(ii) such longer period as the Commissioner allows.
19
(2) So far as is reasonably practicable, the intimate image must be
20
identified in the removal notice in a way that is sufficient to enable
21
the end-user to comply with the notice.
22
Notice of refusal to give a removal notice
23
(3) If the Commissioner decides to refuse to give a removal notice
24
under subsection (1), the Commissioner must give written notice of
25
the refusal to:
26
(a) if subparagraph (1)(c)(i) applies--the person who made the
27
complaint mentioned in that subparagraph; or
28
(b) if subparagraph (1)(c)(ii) applies--the person who gave the
29
objection notice mentioned in that subparagraph.
30
44F Removal notice given to a hosting service provider
31
(1) If:
32
(a) an intimate image of a person is, or has been, provided on:
33
(i) a social media service; or
34
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(ii) a relevant electronic service; or
1
(iii) a designated internet service; and
2
(b) the intimate image was posted on the service by an end-user
3
of the service; and
4
(c) the intimate image is the subject of:
5
(i) a complaint made to the Commissioner under
6
section 19A; or
7
(ii) an objection notice given to the Commissioner under
8
section 19B; and
9
(d) if subparagraph (c)(i) applies--the Commissioner is satisfied
10
that the person did not consent to the posting of the intimate
11
image on the service; and
12
(e) the intimate image is hosted by a hosting service provider;
13
and
14
(f) the posting of the intimate image on the service did not
15
constitute an exempt post;
16
the Commissioner may give the hosting service provider a written
17
notice, to be known as a removal notice, requiring the provider to:
18
(g) take all reasonable steps to cease hosting the intimate image;
19
and
20
(h) do so within:
21
(i) 48 hours after the notice was given to the provider; or
22
(ii) such longer period as the Commissioner allows.
23
(2) So far as is reasonably practicable, the intimate image must be
24
identified in the removal notice in a way that is sufficient to enable
25
the hosting service provider to comply with the notice.
26
Notice of refusal to give a removal notice
27
(3) If the Commissioner decides to refuse to give a removal notice
28
under subsection (1), the Commissioner must give written notice of
29
the refusal to:
30
(a) if subparagraph (1)(c)(i) applies--the person who made the
31
complaint mentioned in that subparagraph; or
32
(b) if subparagraph (1)(c)(ii) applies--the person who gave the
33
objection notice mentioned in that subparagraph.
34
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44G Compliance with removal notice
1
A person must comply with a requirement under a removal notice
2
to the extent that the person is capable of doing so.
3
Civil penalty:
500 penalty units.
4
44H Formal warning
5
The Commissioner may issue a formal warning if a person
6
contravenes section 44G.
7
44J Transitional
8
If an intimate image was posted on:
9
(a) a social media service; or
10
(b) a relevant electronic service; or
11
(c) a designated internet service;
12
before the commencement of this section, this Division does not
13
apply to the intimate image unless the intimate image was provided
14
on the service after the commencement of this section.
15
Division 4--Miscellaneous
16
44K Remedial direction
17
Scope
18
(1) This section applies if a person has contravened, or is
19
contravening, section 44B.
20
Remedial direction
21
(2) The Commissioner may give the person a written direction
22
requiring the person to take specified action directed towards
23
ensuring that the person does not contravene section 44B in the
24
future.
25
Note:
For variation and revocation, see subsection 33(3) of the Acts
26
Interpretation Act 1901.
27
(3) A person must not contravene a direction under subsection (2).
28
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Civil penalty:
500 penalty units.
1
Remedial direction is not a legislative instrument
2
(4) A direction under subsection (2) is not a legislative instrument.
3
44L Formal warning
4
The Commissioner may issue a formal warning if a person
5
contravenes a direction under subsection 44K(2).
6
44M Exempt post of an intimate image
7
(1) For the purposes of this Act, if an end-user of:
8
(a) a social media service; or
9
(b) a relevant electronic service; or
10
(c) a designated internet service;
11
posts an intimate image of a person (the depicted person) on the
12
service, the post is an exempt post if:
13
(d) the post is necessary for, or of assistance in:
14
(i) enforcing a law of the Commonwealth, a State or a
15
Territory; or
16
(ii) monitoring compliance with, or investigating a
17
contravention of, a law of the Commonwealth, a State
18
or a Territory; or
19
(e) the post is for the purposes of proceedings in a court or
20
tribunal; or
21
(f) the post is for a genuine medical or scientific purpose; or
22
(g) an ordinary reasonable person would consider the post
23
acceptable, having regard to the following matters:
24
(i) the nature and content of the intimate image;
25
(ii) the circumstances in which the intimate image was
26
posted;
27
(iii) the age, intellectual capacity, vulnerability or other
28
relevant circumstances of the depicted person;
29
(iv) the degree to which the posting of the intimate image
30
affects the privacy of the depicted person;
31
(v) the relationship between the end-user and the depicted
32
person;
33
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(vi) whether the depicted person has died, and if so, how
1
much time has elapsed since the depicted person's
2
death;
3
(vii) any other relevant matters; or
4
(h) both:
5
(i) the end-user is a protected person (within the meaning
6
of section 91); and
7
(ii) the post was in connection with the exercise of a power,
8
or the performance of a function, conferred on the
9
Commissioner by or under this Act; or
10
(i) a condition determined under subsection (2) is satisfied.
11
(2) The Minister may, by legislative instrument, determine one or
12
more conditions for the purposes of paragraph (1)(i).
13
27 Section 45
14
Omit:
15
•
The Commissioner may accept an enforceable undertaking
16
under Part 6 of the Regulatory Powers (Standard Provisions)
17
Act 2014 that relates to a social media service notice.
18
•
The Commissioner may seek an injunction under Part 7 of the
19
Regulatory Powers (Standard Provisions) Act 2014 that
20
relates to:
21
(a)
a social media service notice; or
22
(b)
an end-user notice.
23
substitute:
24
•
The following enforcement powers are available:
25
(a)
infringement notices;
26
(b)
enforceable undertakings;
27
(c)
injunctions.
28
28 Subsection 46(3)
29
Before "Federal Circuit Court of Australia", insert "Federal Court of
30
Australia and the".
31
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29 Subsection 46(3)
1
Omit "is a relevant court", substitute "are relevant courts".
2
30 After section 46
3
Insert:
4
46A Infringement notices
5
Provisions subject to an infringement notice
6
(1) The following provisions of this Act are subject to an infringement
7
notice under Part 5 of the Regulatory Powers (Standard
8
Provisions) Act 2014:
9
(a) section 44B;
10
(b) section 44G;
11
(c) section 44K.
12
Note:
Part 5 of the Regulatory Powers (Standard Provisions) Act 2014
13
creates a framework for using infringement notices in relation to
14
provisions.
15
Infringement officer
16
(2) For the purposes of Part 5 of the Regulatory Powers (Standard
17
Provisions) Act 2014, a member of the staff of the ACMA
18
authorised, in writing, by the Commissioner for the purposes of
19
this subsection is an infringement officer in relation to the
20
provisions mentioned in subsection (1).
21
Relevant chief executive
22
(3) For the purposes of Part 5 of the Regulatory Powers (Standard
23
Provisions) Act 2014, the Commissioner is the relevant chief
24
executive in relation to the provisions mentioned in subsection (1).
25
(4) The relevant chief executive may, in writing, delegate any or all of
26
his or her powers and functions under Part 5 of the Regulatory
27
Powers (Standard Provisions) Act 2014 to a person who is:
28
(a) a member of the staff of the ACMA; and
29
(b) an SES employee or an acting SES employee.
30
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(5) A person exercising powers or performing functions under a
1
delegation under subsection (4) must comply with any directions of
2
the relevant chief executive.
3
Extension to external Territories etc.
4
(6) Part 5 of the Regulatory Powers (Standard Provisions) Act 2014,
5
as it applies in relation to the provisions mentioned in
6
subsection (1), extends to:
7
(a) every external Territory; and
8
(b) acts, omissions, matters and things outside Australia.
9
31 Subsection 47(1)
10
Repeal the subsection, substitute:
11
Enforceable provisions
12
(1) The following provisions of this Act are enforceable under Part 6
13
of the Regulatory Powers (Standard Provisions) Act 2014:
14
(a) section 36;
15
(b) section 44B;
16
(c) section 44G;
17
(d) section 44K.
18
32 Subsection 47(2)
19
Omit "section 36 of this Act", substitute "the provisions mentioned in
20
subsection (1)".
21
33 Subsection 47(3)
22
Before "Federal Circuit Court of Australia", insert "Federal Court of
23
Australia and the".
24
34 Subsection 47(3)
25
Omit "is a relevant court", substitute "are relevant courts".
26
35 Subsections 47(3) and (4)
27
Omit "section 36 of this Act", substitute "the provisions mentioned in
28
subsection (1)".
29
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36 At the end of subsection 48(1)
1
Add:
2
; (c) section 44B;
3
(d) section 44G;
4
(e) section 44K.
5
37 Subsection 48(3)
6
Before "Federal Circuit Court of Australia", insert "Federal Court of
7
Australia and the".
8
38 Subsection 48(3)
9
Omit "is a relevant court", substitute "are relevant courts".
10
39 At the end of section 88
11
Add:
12
Removal notice
13
(8) An application may be made to the Administrative Appeals
14
Tribunal for a review of a decision of the Commissioner under
15
section 44D, 44E or 44F to give a removal notice.
16
Remedial direction
17
(9) An application may be made to the Administrative Appeals
18
Tribunal for a review of a decision of the Commissioner under
19
section 44K to give a remedial direction.
20
40 At the end of subsection 89(1)
21
Add:
22
; (c) the making of a complaint under section 19A;
23
(d) the giving of an objection notice under section 19B;
24
(e) the making of a statement to, or the giving of a document or
25
information to, the Commissioner in connection with an
26
investigation under section 19C;
27
(f) the making of a statement to, or the giving of a document or
28
information to, the Commissioner in connection with a
29
consideration under section 19D.
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41 At the end of subsection 89(2)
1
Add:
2
; or (d) a removal notice.
3
42 Paragraph 92(1)(a)
4
Omit "or relevant electronic service", substitute ", relevant electronic
5
service or designated internet service".
6
43 Paragraph 93(a)
7
Omit "or relevant electronic service", substitute ", relevant electronic
8
service or designated internet service".
9
44 At the end of subsection 94(1)
10
Add "or 19C or for the purposes of a consideration under section 19D".
11
45 Section 105 (heading)
12
Repeal the heading, substitute:
13
105 Provider of social media service, relevant electronic service or
14
designated internet service
15
46 Subsections 105(1) and (2)
16
Omit "or relevant electronic service" (wherever occurring), substitute ",
17
relevant electronic service or designated internet service".
18