Unauthorised
Photographs on the Internet

And Ancillary
Privacy Issues

Discussion Paper

Standing Committee of Attorneys-General

August 2005

Note: This Discussion Paper does not necessarily represent
the views of the Standing Committee of Attorneys-General or any individual
Attorney-General.

CONTENTS

1      Summary
of discussion questions. 3

2      Introduction. 4

2.1           Background. 5

3      Defining
the issues. 8

3.1           Nature
of unauthorised photographs. 8

3.2           Conduct 9

3.2.1        Taking
unauthorised images. 9

3.2.2        Use
of images. 10

3.3           Harm.. 11

3.4           Who
should be protected?. 13

3.4.1        Children. 13

3.4.2        Public
figures. 13

4      Existing
regulation. 14

4.1           Criminal
law.. 15

4.1.1        Surveillance
devices. 15

4.1.2        Filming
for indecent purposes. 15

4.1.3        Offensive
use of an internet service. 16

4.1.4        Stalking. 17

4.1.5        Indecency
and other offences. 17

4.1.6        Child
pornography. 19

4.2           National
regulatory schemes. 19

4.2.1        National
classification scheme. 19

4.2.2        Online
regulation - Broadcasting Services Act 1992 (BSA) 21

4.2.3        Codes
of practice. 22

4.3           Civil
law.. 24

4.3.1        Common
law tort of invasion of privacy. 24

4.4           International
approaches. 25

4.4.1        New
Zealand voyeurism offence. 25

4.4.2        Dutch
copyright law.. 26

4.4.3        Quebec
charter of rights. 27

4.4.4        Summary. 28

5      Jurisdictional
issues. 29

6      Options
for Reform.. 30

6.1           Legislative
reform options. 30

6.1.1        Criminal
law.. 30

6.1.2        Civil
law.. 32

6.2           Non
legislative reform options. 33

6.2.1        Education
campaign. 33

6.2.2        Other
remedies. 33

7      Reference
List 34

Appendix 1 - Table of
Legislation………………………………………………..38

Appendix 2 - Matters to be
considered in
classification……………………….52

Appendix 3 - National
Classification
Code……………………………………..54

Appendix 4 - International
Approaches………………………………………...57

1
Summary of
discussion questions

(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?

(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? and

(b)        What
types of ‘use’ should be regulated?

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

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

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

2
Introduction

1.      At
a meeting of the Standing Committee of Attorneys-General (SCAG) in August 2003,
Ministers agreed that all State and Territory officers would work in
consultation to develop options for reform to address the issue of unauthorised
publication of photographs being made available on websites, including
ancillary privacy issues associated with the practice.

2.      A
working party of State and Territory officers has been established to examine
possible options for reform. The working party is led by Victoria and consists of representatives
from each jurisdiction.

3.      To
progress Ministers' agreement at SCAG, this Discussion Paper undertakes to:

·
Identify the issues, including privacy issues,
associated with unauthorised publication of photographs on the Internet;

·
Discuss the adequacy of existing State and
Territory laws in their application to these issues; and

·
Identify legislative and non-legislative options
to address these issues.

4.      This
Discussion Paper calls for submissions from interested parties by 14 October 2005. Submissions should be
forwarded to:

Director

Civil Law Policy

Department of Justice

Level 4, 55
Andrews Place

Melbourne  VIC
3000

5.      Submissions
may also be sent electronically to: [email-masked]
or faxed to 03 9651 0577.

6.      Following
receipt and consideration of submissions, a final report will make
recommendations regarding the development of an appropriate response.

2.1
Background

7.      The
issue of unauthorised photographs on the Internet was highlighted in 2002 when
a number of unauthorised photographs of children were posted on voyeuristic
websites. For instance, in February 2002 the media reported the discovery of a
website containing photographs of teenage Melbourne
school boys taken without consent. The website featured pictures of male
students involved in a variety of sporting activities such as rowing and
playing football.[1]

8.      Shortly
after the media coverage, the website in question advised that it had been shut
down and that the site and pictures would not be relocated. The webmaster
claimed that the site was never a “gay website” (as claimed in the
press), and that the adult links had been placed on the site by hackers.
Despite those assurances, a similar new site featuring photographs of young
rowers and sportsmen appeared soon after, although this time there was a fee
payable in order to access the photographs.

9.      In
April 2002, concerns were again raised when photographs featuring a 16 year old
male surf lifesaver were discovered on a sports fetish website.[2]
These photographs had been taken without consent. Web server Yahoo! shut down
the site and advised the public to bring any further inappropriate material to
their attention.

10.  In
June 2003, the media reported that the YMCA had banned mobile phones at its
sports and aquatic centres in response to the potential for invasion of privacy
with mobile phone camera technology being used to take photographs in swimming
pools and change rooms. [3]

11.  More
recently, in Queensland,
the media reported the discovery of a website containing hundreds of images of
children, apparently taken covertly at South Bank Parklands and other
recreational sites.[4]

12.  The
photos and the website were not indecent or unlawful, and the Police found no
links from the site to any pornographic or paedophilic sites. The producer of
the site shut it down following the media exposure. Despite this, the media
reported on the community outrage at the fact that the photos had been taken
surreptitiously and had been exposed to the world via the Internet.

13.  The
instances of unauthorised photographs outlined above caused distress to those
involved and have made parents fearful of further occurrences.

14.  At
present, whether or not the law prohibits the taking of a particular image
largely depends on the nature of the image (or what it depicts). Where the
image of the child has been determined by the appropriate authority to be
offensive, child pornography offences will prohibit the taking of or
distribution of the image.

15.  In
some jurisdictions, there is also a prohibition on the taking of photos of
“private activities” in “private places”.  These are activities carried on in
circumstances that may reasonably be taken to indicate that the parties to them
desire to be observed only by themselves.
They do not include activities carried on in any circumstances in which
the parties to the activities ought reasonably to expect that they may be
observed. The prohibition extends to the use of an image so obtained.

16.  Some
jurisdictions also specifically prohibit filming or photographing a person
without their consent and for sexual gratification. The person being filmed
must either be in a state of undress or engaged in a private act (eg using a
toilet).

17.  The
photographs that prompted this reference and the more recent South Bank case
were not perceived by the authorities to fall within any of the above
categories, because they are photos that are not necessarily objectively offensive
and were of activities occurring in public places. As such there were few, if
any, avenues of redress available to victims of unauthorised photographs posted
in the Internet.

18.  However,
it is important to note that the photographs that led to this discussion paper
were not submitted to the Classification Board to determine if they were
‘prohibited content’ which could then be the subject of a take-down
notice and removed from Australian websites. As such, the established system of
classification of online content (using the National Classification Code) and
removal of ‘prohibited content’ via take-down notices was not
tested.

19.  This
Discussion Paper focuses on the use to which unauthorised images are put rather
than the act of taking the photograph because it was the subsequent use
(publication on the Internet) that prompted public attention and concern.

20.  The
issues to be explored in this Discussion Paper involve a number of intersecting
areas of the law, i.e. criminal laws; privacy laws; Internet regulation; and
censorship law. Enforcement of any measures designed to combat unauthorised
photographs on the Internet will inevitably be difficult. Any jurisdictional
based system of Internet regulation faces inherent enforcement difficulties.
Ideally, international Internet regulation would be the optimal solution.
However, as this is unlikely to occur in the foreseeable future, individual
jurisdictions will have to continue to grapple with these difficult issues.

21.  Central
to the issue of unauthorised photographs on the Internet is the balance between
privacy expectations on one hand, and freedom of expression on the other. While
an individual’s expectation of privacy may in some instances extend to
controlling images of themselves, privacy is a concept which is not easily
defined and hence boundaries are frequently blurred. The ability to communicate
in a relatively free and open manner is an equally important consideration.
Therefore, when considering the issue of unauthorised photographs on the
Internet and whether further regulation may be required, it is important to
first establish that the issues and concerns raised are of a sufficiently
serious nature to warrant reforms which may ultimately encroach on freedom of
expression.

3
Defining the issues

3.1
Nature of unauthorised photographs

22.  Most
Australians have access to some form of photographic equipment.  Photographs can be taken for wide
variety of purposes in public and private circumstances.  Many photographs taken in a public place
will include subjects who have not consented to their photograph being
taken.

23.  Unauthorised
photographs can take all manner of form. They can be photographs of public
events or incidental shots where the focus of the photographer is on another
subject or scene.  They can also include
specific photographs taken of a person not known to the photographer.  This could be for an innocent, candid
shot or for some inappropriate purpose.

24.  The
incidents that prompted this Discussion Paper primarily involved images of
children taking part in sporting and recreational activities in public places.
The photographs in the school-boy rowers, surf lifesavers and South Bank
situations were not sexually explicit. However, the photographs of the
school-boy rowers could be perceived as containing characteristics of sexual
gratification. The photographs did not centre on the sports being played;
rather they focused solely on the boys' physical attributes i.e. photographs of
boys who had half removed their rowing suits. Additionally the photographs centred
on close up shots of the boys' bodies in tight clothing (swim suits and rowing
suits) rather than their faces or while actually playing sport.

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.

26.  The
small size of many cameras and the advent of mobile-phone cameras makes it
easier to take photographs without the subject’s knowledge. This, in
turn, heightens the risk/possibility that photographs will be used without the
subject’s consent.

27.  The
ease of publication may also be relevant. In the past, the need to seek
professional assistance for the development of photographs may have discouraged
people from taking certain types of unauthorised photographs. However, digital
photographs can now easily be printed at home.

28.  In
addition, photographs taken on digital cameras or mobile phones can be sent
live online or stored in personal computers, or forwarded on to other
mobile-phone users. This allows photographs to be taken and transmitted quickly
to a vast audience either by posting on the Internet or on-sending the
photograph to a mobile-phone user.
This is dramatically different to the traditional forms of publication,
which are less accessible, slower, involve higher costs of entry, and involve
fewer potential recipients.

29.  The
digital nature of these photographs also allows greater opportunity for an
image to be altered. For example, an image of a person’s head can be
transposed onto the naked body of another person.

3.2
Conduct

30.  There
are primarily two types of conduct that are at issue. That is, the act of taking the unauthorised image, and
secondly the use to which the image
is put.

3.2.1
Taking unauthorised images

31.  Many
photographs contain unauthorised images because the subject has not consented
to, or may not even be aware that the photograph has been taken. This raises
questions about consent and the state of knowledge of the subject. It also
raises the question of whether different rules should apply depending on
whether photographs are taken in a private or public place.

32.  The
issues highlighted by the school boys’ incident illustrate the delicate
balance between a person's expectation of privacy and control over their own
image versus the freedom to take photographs in a public place. The question
that arises is whether people should expect privacy in public places, or while
engaging in public activities.

33.  People
present themselves differently in different public places. For instance, while
a person might be comfortable wearing and being seen in a swimsuit at the
beach, they might not be comfortable being seen in a swimsuit whilst shopping
in a mall. While a person might be comfortable in presenting themselves in a
particular way at a beach, a photograph, which facilitates a permanent image,
provides a broader context for those images.

34.  But
for any society to function in a relatively free and open manner there could
not realistically be a requirement for all photographs to be taken with
consent. If there were such restrictions, candid shots could never be taken,
and the media would be severely constrained in the images they show us. Freedom
of expression and artistic expression would undoubtedly be adversely affected.

35.  The
difficulty is that while there may be legitimate circumstances when recording
images should be restricted, it would not be practical or desirable to obtain
consent from every person all of the time, for example, for use in television
news file footage.

36.  The
issue of consent regarding photographs taken in a public place illustrates the
difficulty in trying to find an appropriate balance between freedom of
expression, and an individual’s expectation of privacy.

37.  The
matter must also be kept in perspective as the
vast majority of photographs of children are taken in appropriate circumstances
and are used for acceptable purposes. 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. It would also be
necessary to define how consent might be given, that is whether it would need
to be in writing, or implied from the circumstances. For these reasons, a
prohibition of this nature would seem to be unenforceable and perhaps a
disproportionate response to the issue sought to be addressed.

38.  In
the cases referred to above, none of the subjects had consented to the
photographs being taken.  It was not
the taking of the photograph that raised the public’s attention but
rather how they were used.

3.2.2
Use of images

39.  The
use to which an image is put is the central issue in the situations which have
led to this Discussion Paper.

40.  Publishing
images of a person without their consent removes their freedom to choose how
they present themselves to the world. Some may argue that consent is implicit
because the activity is in a public place in full view of people. On the other
hand, filming results in a permanent record that can be used in many ways. It
is natural that where people are aware they are being filmed, they can adjust
their behaviour accordingly. If a person has no knowledge they are being filmed
they have no way of reducing the intrusion.

41.  It
is instructive to draw a distinction between consent for taking a photograph
and consent for the use to which it is put. For example, while year 12 students
at a formal might consent to a hired photographer taking photographs, they may
not consent to those photographs being posted on the Internet for anyone to
purchase or view.

42.  Similarly,
consent for the use to which photographs are put is of note because it is
probable that while a person would not object to a photograph being taken of
themselves they may object to that same photograph being used to advertise
cigarettes or perhaps as an illustration for a story about obesity.

43.  With
respect to the South Bank photographs, the collection of hundreds of photographs
of children posted together was seen to be offensive by many parents.  The presentation of the photographs in
the form of a collection was seen by some as indicating that the photographs
were being viewed for the purpose of sexual pleasure.

44.  The purpose
of the photographs or images, or similarly the use to which photographs are
put, may be highlighted by the context of the photographs. For instance if the
purpose of the photographs is for the sexual gratification or voyeurism of
others, then this will frequently be apparent by the context in which the
photographs appear. For example, there may be links to sexually explicit sites,
or links to chat rooms which contain discussions with sexual themes.

45.  Unauthorised
images which are distributed on the Internet by and large become the object of
others’ viewing. The potential audience of Internet users is very large.
When the particular image involves parts of the body only, objectification can
increase and the use of the images for sexual gratification/voyeurism may
become apparent.  This is
particularly the case with images of children or teens. Even though a picture
may not be pornographic it may still be considered offensive because it could
foster the notion of children as objects of adult sexual gratification.

46.  The
use of photographs is important because other factors such as consent may not
be an issue if the use the photographs are put to is considered generally
acceptable. For instance, if a school took photographs of their pupils
competing in a rowing regatta (without the students’ consent) and posted
these on the school web site it is unlikely this would cause the same reaction
or harm as the situation at hand. The purpose of these photographs might be to
advertise the school's sporting activities, in which case, no harm to the
students is likely to result. This example demonstrates the strong link between
the purpose of the photographs, or the use to which they are put, and whether
harm results.

3.3
Harm

47.  The
taking of an unauthorised photograph would not normally cause immediate harm of
itself. However, this may not be the case if the subject realises or is made
aware that the photograph has been taken. For example, some cultural groups may
object to being photographed.

48.  Another
example involves a man in NSW who took photographs of women sunbathing topless.[5]
The harm being that the women may have taken offence and/or felt that their
privacy had been invaded.

49.  In
other situations, it may be that the act of taking an unauthorised photograph
will not, of itself, produce any immediate harm. For example, in the school
boys rower and surf lifesavers scenarios, where the subjects of the photograph
were not aware that the photographs were being taken.

50.  Therefore,
in examining this issue it is important to establish what it is about the use
of the photographs, such as the posting of unauthorised photographs on the
Internet, that causes harm to the people in the photographs.

51.  There
appear to be a number of common factors, for example:

·
lack of consent (lack of control over one's own
image in terms of both the taking of the photograph and the use to which it is
put);

·
the nature of the photographs themselves (for
example, objectification of the subject);

·
the context in which the photographs are
displayed; (sexually explicit, or themes of objectification);

·
the purpose of the photographs (others’
sexual gratification);

·
the permanency of recorded images (higher level
of scrutiny); and

·
world wide audience.

52.  The
form of publication and context of the publication can affect the level of harm
suffered by the subjects and their families. The context of the photographs in
both the school boys and surf lifesaver situations were closely linked to the
harm caused. In those reported incidents, websites provided the context. The websites
in question contained links to pornographic sites and the content on the sites
(although not in itself sexually explicit) suggested that the purpose of the
websites was for others' sexual gratification or voyeurism. The sexual
connotations caused by the context, coupled with the photographs themselves
were directly connected with the harm caused.

53.   The school boy rowers reportedly felt
that some older men would view them as sexual objects by virtue of the website
context. They reported a range of reactions, for example: feelings of anger, a
sense of violation, anxiety about going out in public places, feelings of
exploitation and invasion of privacy.

54.  The
permanent nature of recorded images (whether moving or still) allows close
scrutiny, wide dissemination, and repeated viewing. This permanency and
opportunity for repeated viewing provides opportunity for ongoing
objectification of the subject, and therefore ongoing harm.

3.4
Who should be protected?

3.4.1
Children

55.  In
looking at this issue in terms of protection from harm it is instructive to
look at those involved and whether there is any difference with respect to
children (under 18) and adults, and their respective need for protection from
harm.

56.  In Victoria, where this
issue first came to public attention, the people involved were young,
specifically: school boys and young surf lifesavers. Children are undoubtedly
more vulnerable than adults. By virtue of their age and inexperience they are
less likely to be aware of people who would take photographs for undesirable
purposes and hence less able to take precautions.

3.4.2
Public figures

57.  Public
figures, such celebrities and the like, may be concerned about the use of
unauthorised photographs of themselves. However, their situation should be
looked at in terms of the level of harm and whether additional protection is
necessary. Celebrities often actively seek publicity to maintain their profile.
Further, they will frequently have resources to protect their reputation and
use of their image through defamation actions and trade practices actions. For
example, 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.[6]

Discussion Questions:

(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?

(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; and

(b) What types of
‘use’ should be regulated?

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

4
Existing regulation

58.  The
States, Territories and Commonwealth all have an array of different laws that
to some degree have a bearing on the issue of unauthorised images published on
the Internet. For example, there are laws relating to surveillance devices,
stalking, classification, and Internet content which are all of some relevance
to this discussion. See Appendix 1
for a table of relevant legislation in each jurisdiction.

59.  Notions
of privacy and protection of privacy are also central to the issues explored in
this discussion paper. The meaning of ‘privacy’ is difficult to
define with any precision. The simplest and most often quoted definition of
‘privacy’ is that advanced by Warren and Brandeis in 1890 as
‘the right to be let alone’. A more recent definition advanced by
Professor Alan Westin in 1967 is:

‘the claim of individuals, groups or institutions to
determine for themselves when, how and to what extent information about them is
communicated to others’.

60.  Privacy
protection is recognised in Article 17 of the International Covenant on Civil
and Political Rights (1966) (ICCPR)[7]:

1. No one shall be subjected to arbitrary or unlawful
interference with his [or her] privacy, family, home, or correspondence, nor to
unlawful attacks on [ones'] honour and reputation.

2. Everyone has the right to the protection of the law
against such interference or attacks.

61.  Statutes
provide certain forms of privacy protection, for example: information privacy,
privacy of communications via surveillance and telecommunications legislation.
Some protection has also been obtained as an offshoot of other causes of action
such as defamation, breach of confidence, trespass and nuisance. However, there
may be gaps as identified below in respect of the school boys’ scenario.

62.  There
is no absolute right to privacy in Australia.  At the national level, Australia's
statutory privacy regime, the Privacy Act
1988, protects 'personal information'.
Personal information is defined in the Act as information or an opinion,
whether true or not, about an individual whose identity is apparent, or can
reasonably be ascertained, from the information or opinion. For the Privacy Act
to apply that personal information must be in the form of a 'record', which
includes a document, database, photograph or other pictorial representation of
a person.

63.  The
Act applies to Commonwealth agencies and private sector organisations.  The eleven Information Privacy Principles
(IPPs) in section 14 of the Act apply to Commonwealth and Australian Capital
Territory government agencies and the ten National Privacy Principles (NPPs) in
Schedule 3 of the Act apply to private sector organisations (with some
exceptions set out in the Act - for example, small businesses that do not trade
in personal information or collect sensitive health information are exempt).
Both the IPPs and the NPPs establish standards for the collection, use,
disclosure, quality and security of personal information. The privacy
principles also allow for access to, and correction of, information by the
individuals concerned.

64.  One
important exception is that the privacy principles do not apply to individuals
who are not engaged in business but are merely conducting their personal,
family or household affairs.  As a
result, the Privacy Act will generally not apply to an individual who takes
photographs of another person without their consent.

4.1
Criminal law

4.1.1
Surveillance devices

65.  A
number of jurisdictions have legislation that governs listening and optical
surveillance devices. For instance, in Victoria it is an offence to use an
optical surveillance device (such as a camera or mobile phone camera) to record
visually a “private activity”
to which the person is not a party, without consent.  Situations like the school boys rowing
are not assisted by this offence, as rowing in a public place could not be
considered a “private activity”.[8]
The Northern Territory and Western Australia also have offences
relating to surveillance devices, and these similarly do not apply to
activities in public places.

66.  Further,
in Victoria,
an activity “carried on outside a building” is not a “private
activity” for the purposes of surveillance devices legislation.[9]  As such, these provisions would not be
of assistance where mobile phone cameras or other devices are used to take
pictures up women’s skirts or of children on South Bank.

4.1.2
Filming for indecent purposes

67.  New South Wales has
recently enacted an offence for filming for indecent purposes.[10]
The elements of the offence include filming a person (without consent) in a
state of undress, engaged in a “private act” or in circumstances
where a reasonable person would expect privacy. The purpose of the filming must
be to provide sexual arousal, or sexual gratification.[11]  “Engaging in a private act”
is defined as a person engaged in using the toilet, showering or bathing,
carrying on a sexual act of a kind not ordinarily done in public or any other
like activity. Similarly to the surveillance devices offences above, the NSW
indecent filming offence focuses on the protection of private activities.

68.  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.

69.  South
Australia, as part of new legislation concerned with child pornography, has
recently amended the Criminal Law
Consolidation Act and created an offence (Section 63B) where “a
person who acting for a prurient purpose makes a photographic, electronic or
other record from which the image, or images, of a child engaged in a private
act may be reproduced, is guilty of an offence”.  It is no excuse if the acts alleged to
constitute the offence occurred in private or in public, or with or without the
consent of the child, or the child’s parent or guardian.

70.  A
“prurient purpose” is defined as “a person acts for a
prurient purpose if the person acts with the intention of satisfying his or her
own desire for sexual arousal or gratification or of providing sexual arousal
or gratification for someone else.”

71.  A
“private act” means a sexual act; or an act involving an intimate
bodily function such as using a toilet; or an act or activity involving
undressing to a point where the body is clothed only in undergarments; or an
activity involving nudity or exposure or partial exposure of sexual organs,
pubic area, buttocks or female breasts.

72.  Similar
to the surveillance devices legislation, the restriction to “private
acts” prevents its application in the school boys’ type situation,
although these offences may have application to ‘upskirting’ and
filming in toilets and the like.

4.1.3
Offensive use of an Internet service

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.

4.1.4
Stalking

76.
Most jurisdictions have offences for
stalking.  It is possible that the
taking of photographs could constitute stalking, where in taking the
photographs the offender engages in a 'course of conduct'.  However, the offence of stalking is
ultimately of limited application as the requisite intention is unlikely to be
present in a situation like the school boys rowing. For example, in Victoria the requisite
intention is causing physical or mental harm to the victim or of arousing
apprehension or fear in the victim.

4.1.5
Indecency and other offences

77.
A number of jurisdictions have 'indecency'
offences. For instance in the Northern Territory an offence exists for
publishing an 'indecent article' i.e. one that depicts, describes or represents
in a manner that is likely to cause offence to a reasonable adult, a person
(whether or not engaged in sexual activity) who is or looks like a child under
16. This offence would, however, appear to have a limited application in that
an image of the school boys rowing or the surf life savers, may not be
considered 'indecent'.

78.
The Northern
Territory also has an offence regarding indecent
dealing with a child under 16 which includes taking or recording indecent
visual images of a child under 16 (s 132 Criminal
Code (NT)). Again it would appear unlikely that this offence would extend
to the school boys or surf lifesavers' situation.

79.
Under section 210(1)(f) of the Queensland Criminal Code, it is an offence if a
person, without legitimate reason, takes any indecent photograph or records, by
means of any device, any indecent visual image of a child under the age of 16
years. Again, it would be unlikely to apply to the school boy rowers or South
Bank situations.

80.
Under section 227(1) (indecent acts) of the
Queensland Criminal Code, it is an
offence to (a) wilfully and without lawful excuse do any indecent act in any
place to which the public are permitted to have access, whether on payment of a
charge for admission or not; or (b) to wilfully do any indecent act in any
place with intent to insult or offend any person.

81.
This offence, and the offence in section
210(1)(f), was recently used to prosecute a man who had taken large numbers of
photos of women at shopping centres. Generally, the conduct followed a
particular course, in that he took a photo of the woman from a distance, then a
closer photo and finished with a photo of the woman’s underwear under her
skirt. The photographs taken of the actual underwear of the complainants were
'indecent', therefore, the taking of those photographs could be charged under
section 227(1)(a) of the Criminal Code. In relation to one of the images, it
was obvious from other photographs that the subject was a juvenile therefore
this was charged under section 210(1)(f) of the Criminal Code (recording an
indecent visual image of a child under 16).

82.
However, there was no criminal charge available
to cover the remaining photographs of the women, as they could not be classed
as “indecent”.

83.
Section 4 of the NSW Summary Offences Act 1988 makes
it an offence for a person to conduct himself or herself in an offensive manner
in or near, or within view or hearing from, a public place or a school.  While this provision has been used to
successfully prosecute a person surreptitiously taking photographs of topless
women on a Sydney
beach[12],
it is unlikely to apply to the school boy rower situation.  In general, offensive behaviour must be
such as is calculated to wound the feelings, arouse anger or resentment or
disgust or outrage in the mind of a reasonable person.

84.
In Tasmania,
it is an offence to behave in an offensive or indecent manner in a public place
and to insult, or annoy any person (s 13 of the Police Offences Act 1935). This section could be used to
deal with the type of situation that occurred in NSW in relation to taking
photographs of women sunbathing topless on a beach. However, as the focus is on
the behaviour of the person in public, it would also appear unlikely that this
could be applied in the school boys or surf lifesavers' situation.

85.
Section 6 of the Queensland Summary Offences Act 2005 creates the offence of “public
nuisance”. A person commits a public nuisance offence if the person behaves
in a disorderly way; an offensive way; a threatening way; or a violent way; and
the person’s behaviour interferes, or is likely to interfere, with the
peaceful passage through, or enjoyment of, a public place by a member of the
public.

86.
To be applicable to the photography situation,
this offence requires the person’s conduct to be “offensive”
or “threatening”, and to be likely to interfere with public
enjoyment of a public place. While it may have application to someone openly
photographing children in a public place; it may not apply where the filming
was surreptitious or covert, i.e. where the subject did not know they were
being filmed.

4.1.6
Child pornography

87.
Child pornography offences are common to all
jurisdictions. In NSW the possession, production or dissemination of 'child
pornography' is an offence. 'Child pornography' is defined as material that
depicts or describes, in a manner that would in all the circumstances cause
offence to reasonable persons, a person under (or apparently under) the age of
16 years either engaged in sexual activity, or in a sexual context, or as the
victim of torture, cruelty or physical abuse (whether or not in a sexual
context).

88.
New federal Internet child pornography offences
were introduced by the Australian Government last year and came into force on 1
March 2005. These make it an offence to intentionally access, transmit or make
available child pornography using the Internet. They also cover possession,
production or supply of child pornography with the intention of making it
available on the Internet. The definition of ‘child pornography’
includes depictions of a person under 18 engaged in a sexual pose or sexual
activity, and material, the dominant characteristic of which is the depiction
for a sexual purpose of a sexual organ, the anal region or the breasts (in the
case of a female) of a person under 18. In each case the material must be
something that a reasonable person would consider to be offensive.

4.2
National regulatory schemes

4.2.1
National classification scheme

89.
The national classification scheme is a
co-operative arrangement between the Commonwealth, States and Territories. The
scheme was established by the Classification
(Publications, Films and Computer Games) Act 1995 of the Commonwealth. This
legislation provides for a specialist body, the Classification Board
(‘the Board’), to classify films, computer games and certain
publications. As such, the Classification Board is the expert body in bringing
community standards to the classification of material. The States and
Territories enforce classification decisions with offences mainly relating to
sale and exhibition under their respective enforcement legislation. Members of
the Board are appointed with a view to ensuring that they broadly represent the
Australian community.

90.
The Board and Classification Review Board
(‘the Review Board’) make decisions in accordance with the National
Classification Code (‘the Code’) which names and broadly describes
the classification categories for classifiable material. The classification
guidelines are a tool used by the Board to assist in applying the criteria in
the Code by describing the classification categories and setting out the scope
and limits of material suitable for each category. When making classification
decisions, the Board and Review Board are also obliged to take into account
matters set out in section 11 of the Classification
(Publications, Films and Computer Games) Act 1995 of the Commonwealth.
These include standards of morality, decency and propriety generally accepted
by reasonable adults [see Appendix 2].

91.
The Commonwealth, State and Territory Ministers
with censorship responsibilities approve the Code. Films which are classified
RC (Refused Classification) include films that ‘describe or depict in a
way that is likely to cause offence to a reasonable adult, a person who is, or
appears to be, under 18 (whether the person is engaged in sexual activity or
not)’. [see Appendix 3 for full descriptions]. The
RC classification is also of relevance to the regulation of online content
which will be discussed shortly.

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’).

93.
The Classification Board is a specialist body
that has been established to make these difficult decisions. As such, it is
important to note the important function of the Classification Board and the
broad application of the RC classification in respect of depictions of children
that is currently in place.

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.

4.2.2
Online regulation - Broadcasting
Services Act 1992 (BSA)

95.
The Australian Communications and Media
Authority (ACMA) administers a co-regulatory scheme to deal with Internet
content. The aim of the scheme is to address community concerns about offensive
and illegal material on the Internet. The scheme is established under Schedule
5 of the Broadcasting Services Act 1992.
Some of the ACMA’s functions in administering the scheme include:

·
Investigation of complaints about Internet
content;

·
Encouraging development of codes of practice for
the Internet industry, registering and monitoring compliance with such codes;

·
Providing advice and information to the community
about Internet safety issues, especially those relating to children's use of
the Internet; and

·
Liaising with overseas bodies.

96.
Members of the public can make complaints about
Internet content to the ACMA, if it is, or would be prohibited content under
the BSA as described below.

97.
The Scheme relies on the classification
decisions of the Classification Board which is supported by the Office of Film
and Literature Classification.

4.2.2.1
Prohibited content

98.  The
following categories of Internet content[13]
are prohibited:

·
Content which is (or would be) classified RC or
X 18+ by the Classification Board; and

·
Content hosted in Australia which is classified R 18+
and not subject to a restricted access system which complies with the criteria
determined by the ACMA.

99.  See Appendix
3 for full descriptions of RC, X 18+ and R 18+.

4.2.2.2
Prohibited content hosted in Australia

100.    Where
content is hosted in Australia
and is prohibited, or is likely to be prohibited, the ACMA will direct the
Internet Content Host (ICH)  to
remove the content from their service. The legislation does not make it an
offence for an ICH to host prohibited content. However, if the ACMA directs an
ICH to take-down prohibited or potential prohibited content, the ICH must
comply with this direction and failure to do so may amount to an offence.

4.2.2.3
Take-down notices

101.    The
ACMA can direct an ICH to remove prohibited and potential prohibited content.
It does this by issuing a take-down notice. In the case of prohibited content,
a final take-down notice is issued, directing the ICH not to host the content
concerned at any time. In the case of potential prohibited content, an interim
take-down notice is issued, directing the ICH not to host the content until it
has been classified by the Classification Board.

4.2.2.4
Compliance

102.    An
Internet Content Host must comply with the various 'take-down' notices as soon
as practicable, or in any event by 6pm the next business day. A person is
guilty of an offence if they contravene an online provider rule - i.e. a
take-down notice. The penalty is 50 penalty units. The ACMA may apply to the
Federal Court for an order that the person cease supplying Internet carriage
services or cease hosting Internet content.

4.2.2.5
Prohibited content not hosted in Australia

103.    If
the content is not hosted in Australia
and is prohibited, or is likely to be prohibited, the ACMA will notify the
content to the suppliers of approved filters in accordance with the Internet
Industry Association's code of practice. If the content is sufficiently serious
(for example child pornography), the ACMA may refer the material to the
appropriate law enforcement agency in that particular jurisdiction.

4.2.3
Codes of practice

104.    Codes
of practice are currently utilised in a number of industries, including the
Internet industry. If Internet industry codes are not developed, the ACMA can
determine an industry standard. Codes have a number of valuable functions in
that they can set a standard of behaviour that the public can expect to receive
from an industry. Codes can assist in bringing order and confidence to an
industry in a way which minimises administrative costs, and avoids the need for
stringent government regulation. Codes can be used to address disputes between
individual industry participants and the public by providing complaint handling
procedures.

4.2.3.1
Internet industry codes of practice

105.    The
development of Internet codes of practice is underpinned by the legislative
powers of Schedule 5 of the Broadcasting
Services Act 1992 (BSA). The
codes apply to Australian ISPs and ICHs only.  Compliance with an
industry code is voluntary unless the ACMA directs a particular participant in
the Internet industry to comply with the code.

106.    The
ACMA also has a reserve power to make an industry standard if there are no
industry codes or if an industry code is deficient. Compliance with industry
standards is mandatory.

107.    The
BSA prescribes the matters that must be dealt with by industry codes and
industry standards including such issues as procedures to prevent online
accounts being provided to children; providing parents and responsible adults
with information about how to supervise and control children's access to
Internet content; and procedures to assist customers to make complaints.

108.    The
Australian Broadcasting Authority (now ACMA) registered three codes of practice
developed by the Internet Industry Association (IIA) in consultation with the
community and industry which took effect on 1 January 2000 following
consultation with the community, industry and the community advisory body,
NetAlert.

109.    The
ABA registered
new codes of practice on 27 May 2005.
The new codes respond to the May 2004 Report on the Review of the
operation of the Online Content Co-regulatory Scheme, established under
Schedule 5 of the BSA.  The new
codes of practice are available for download at http://www.iia.net.au.

110.    As
the IIA codes are underpinned by the legislative powers of Schedule 5 of
the BSA, which in turn refer to decisions of the Classification Board,
procedures to assist members of the public to make complaints about content rely
on the existing classification system. However, as previously noted, the images
of the school boys were not submitted to the Classification Board for
classification under the existing regulatory framework.

4.2.3.2
Privacy codes

111.    While
co-regulatory codes of practice regulate industry behaviour, for example
Internet content, privacy codes provide organisations and industries with the
option of developing their own privacy standards.  As previously discussed, the Privacy Act 1988 regulates the
collection, holding, security, use and disclosure of personal information by
many private sector organisations.
Section 18BB of the Privacy Act allows private sector organisations and
industries the flexibility of developing and enforcing their own privacy
codes.  These codes must be, at
least, equivalent to the standard established by the NPPs in that once the code
has been approved by the Federal Privacy Commissioner, it then replaces the
obligations established by the NPPs. Only organisations that consent to be
bound by an approved privacy code are, or will be, bound by it.

112.    The
IIA has submitted a draft privacy code to the Privacy Commissioner for
approval.  While this draft Code may
have some application to the publication of unauthorised photographs on the
Internet, it does not directly deal with this issue.

4.3
Civil law

4.3.1
Common law tort of invasion of privacy

113.    In
Australia, the 1937 decision
of the High Court in Victoria Park Racing and Recreational Grounds Co Ltd v Taylor[14] has been considered an authority for the
view that there is no common law right to privacy in Australian law.
Nevertheless in 2001, in the case of ABC
v Lenah Game Meats Pty[15] some High Court judges left open the
possibility of the development of a tort of privacy that would provide a cause
of action for invasion of privacy.

114.    In
September 2003, the Queensland District Court, in the case of Grosse v Purvis[16]
recognised a tort of privacy although there were other heads of damage that
supported the plaintiff's claim. However, this case has not been followed in recent
superior court decisions.

115.    In
Giller v Procopets[17]
the Victorian Supreme Court considered that the law in Australia had
not developed to the point where it recognised an action for breach of privacy.
Similarly, the Federal Court in Kalaba v
Commonwealth of Australia[18]
held that the weight of authority at the moment led to the conclusion that
there was no tort of privacy in Australian law.

116.    Given
the reluctance of superior courts to recognise a tort of privacy, it is
unlikely that this cause of action will be successful in providing protection
in the near future against privacy threats posed by rapidly developing
information, communication and surveillance technology[19].

4.4
International approaches

4.4.1
New Zealand voyeurism offence

117.    Over
the last few years a number of jurisdictions have examined the issue of
voyeurism. The reoccurring theme is that advances in technology are increasing
the ease and opportunity for voyeurism. In particular the New Zealand
approach is discussed below, while an outline of other international approaches
can be found at Appendix 4.

118.    The
New Zealand Law Commission released a study paper entitled Intimate Covert Filming in June 2004. This study paper described
contemporary voyeurism (or covert intimate filming) as the act of a person observing
others covertly as they undress, undertake intimate bodily functions (such as
using a toilet or showering), or engaging in sexual activity, for the purpose
of deriving sexual gratification.[20]

119.    The
NZ study paper proposed a new offence to deal with intimate covert filming. The
issue of intimate covert filming has come to light in response to invasions to
privacy such as ‘up-skirt’ filming. The paper considered that
covert filming of people in intimate situations, and distribution and possession
of the resultant images, are fundamental invasions of privacy, dignity and
autonomy[21].

120.    The
offences proposed include: making a voyeuristic recording; publishing a
voyeuristic recording; and possession of a voyeuristic recording. The proposed
penalty for the offences of making and publishing a voyeuristic recording is 3
years imprisonment. The offence of possession has the lesser penalty of 12
months imprisonment. The key elements of the offence of making a voyeuristic
recording include:

·
Intentionally or recklessly making a visual
recording of a person without their knowledge or consent, in circumstances
where that person would reasonably expect privacy, and they are:

·
Nude or partially exposed;

·
Engaged in explicit sexual activity; or

·
Engaged in an intimate bodily activity such as
using a toilet.

·
Intentionally or recklessly making a visual
recording of another person (without their knowledge or consent) under their
clothing for the purposes of viewing their sexual organs, pubic area, buttocks,
breasts or underwear in circumstances where it is unreasonable to do so.

121.    See Appendix
4 for the proposed NZ offences in full.

122.    While
these voyeurism offences parallel some of the issues in this Discussion Paper,
the significant difference is that the circumstances of the visual recording
involve: nudity or partial exposure of sexual organs, pubic area, buttocks,
breasts; or involves engagement in sexual activity or intimate bodily activity
- such as using the toilet. Clearly, there is a higher level of intimacy (or
expectation of privacy) present in these situations when compared to the school
boy rower situation.

123.    The
NZ study paper elected not to widen the scope of the proposed offence to
include surreptitious filming of people in public or in non-intimate
circumstances (other than filming under their clothing) even if done for the
purposes of sexual gratification.[22]

4.4.2
Dutch copyright law

124.    Dutch
lawmakers have devised copyright offences to deal with the trade in videos
depicting naked children.[23]

125.    The
Dutch Government sought to eradicate the trade in videotapes showing children
on beaches and nudist beaches. These video recordings are made without the
parent's or child's consent. The recordings were copied and then distributed
through the retail trade or informal networks.[24]
Furthermore, consent was not given for the copying and distribution of the
tapes. The videotapes in question do not contain child pornography under the
Dutch Criminal Code.[25]

126.    The
Dutch Copyright Act contains both civil and criminal responses to this issue. Firstly,
the civil approach is located in section 21 of the Dutch Copyright Act, which
provides that the publication of a portrait made without a commission (which is
what these video images are) is not permitted if this would be contrary to the
reasonable interests of the person shown in the portrait.[26]
Clearly, the children featured in the videotapes have a reasonable interest in
preventing publication of the tapes.[27]
The next step under the Dutch approach involves the children and or their legal
representatives applying to the civil courts for an injunction to restrain
publication of the tapes and to order their destruction.[28]
Penalties apply for breach of such an injunction. However, difficulties arise
in that the publication may not always come to the attention of the injured
party until many copies have already been distributed. As such, the injured
party may be faced with a multitude of distributors.[29]

127.    Section
35 of the Dutch Copyright Act contains the criminal offences, whereby publicly
exhibiting or otherwise publishing a portrait without being entitled to do so,
is a summary offence. The public prosecutions service will then have to prove
that there is a reasonable interest in preventing publication. However, as this
sort of proof would normally come from those featured in the tapes this can be
problematic where the identity of those persons is not known.[30]
For these reasons the public prosecutions service in Amsterdam suggest that the public
prosecutions service itself should be able to institute civil proceedings
independently on behalf of the injured parties.[31]

128.    The
Dutch approach is of interest in respect of the concept of protecting the
'reasonable interests' of the person photographed. However, copyright law may
not be an appropriate vehicle in Australia. Copyright protects the
intellectual property in creative endeavour, and therefore can only provide
remedies for acts that are connected to infringements of intellectual property
rights. However, the concept of protecting the ‘reasonable interests’
of a person in a photograph could be captured in a form outside copyright law.

4.4.3
Quebec charter of rights

129.    A
further international comparison occurs in the form of the Quebec Charter of
Human Rights and Freedom. Section 5 of the Charter guarantees every person a
'right to respect for his private life'.

130.    The
Canadian case Aubry v Editions Vice-Versa[32]
provides a useful illustration of the Supreme Court of Canada's application of
s 5 of the Quebec Charter. In this case a photograph of Ms Aubry, a 17 year old
girl sitting on a step outside a building in Montreal, was published in an arts magazine.
The photograph was taken in a public place without Ms Aubry's consent. Ms Aubry
sued the photographer and the magazine on the basis that the unauthorised
publication of the photograph violated her right to privacy guaranteed by s 5
of the Charter (i.e. every person has a right to respect for his or her private
life). Ms Aubry claimed she had been subjected to ridicule following
publication.

131.    The
Court found in favour of Ms Aubry, and held that the right to one's image falls
within the right to respect one's private life in s 5. As such, the publication
of a photograph of an identifiable individual (without consent) is a violation
of that right.

132.    However,
the Court did indicate that there are cases where the public's right to be
informed, or freedom of expression (also provided for in the Charter) will
prevail over the individual's right to privacy. The Court provided some
qualifications as to when taking photographs of a person would not be a
violation of his or her s 5 rights. For example, consent would not be required
from those photographed in a crowd scene or those whom are in public life.

4.4.4
Summary

133.    In
summary, the criminal law focuses on prohibiting the taking and use of particular
images of children. Generally, the sorts of images that are prohibited are
those images of children which are objectively offensive to a reasonable adult.
Some of these criminal offences are quite prescriptive and narrow in that many
refer to specific body parts or require a purpose of ‘sexual
gratification’.

134.    Additionally,
the criminal law in a number of jurisdictions provides protection in respect of
filming private activities in the private sphere. However, there may be a gap
to the extent that people have expectations of privacy in public places (i.e.
‘upskirting’).

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.

136.    The
national classification scheme and online regulation provide an established
system of identification and removal of prohibited content from the Internet.
It is again noted that the scenarios that gave rise to this reference 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). However, it should be acknowledged that the RC classification is
already broad and covers any depictions of children that are likely to offend a
reasonable adult. There is no requirement that the children be naked or
involved in sexual activity to meet this offensiveness test.

137.    However,
it may be argued that there is a gap to the extent that the existing system of
online regulation (which relies on the National Classification Code) can take
into account the content of linked websites when determining if an image of a
child constitutes ‘prohibited content’.

5
Jurisdictional issues

138.    Jurisdictional
issues are unavoidable where the Internet is concerned. Websites displaying
pictures of Australian children may be based overseas as was the case with the
schoolboy rowers. Following the Olympic Games in Sydney
there were many photographers from around the world in Australia and
they took unauthorised photographs and then published them on the Internet by
uploading them from their home country. The majority of material published on
the Internet originates from the United States. As such, there are
clearly limitations on the application of any Australian legislative response.

139.    As
Justice Kirby has remarked, privacy is a global topic and technology laughs at
paltry attempts to make them subject to purely local laws.[33]
These difficulties have been highlighted in the defamation case of Dow Jones v Gutnick[34]
where the alleged defamatory material was uploaded in the United States of America, but subsequently
downloaded in Victoria
where the action was initiated. The Internet blurs the relevance of
jurisdictional boundaries.

140.    The
end result is that where Internet material is involved, our law enforcement
agencies are limited to material posted in Australia, although they may work
with other law enforcement bodies from around the world. Child pornography on
the Internet is dealt with in this manner, as most countries have equivalent
offences. It would be somewhat less likely that other countries would have
equivalent offences for unauthorised photographs on the Internet (that are not
child pornography). Therefore it is less certain that assistance from overseas
law enforcement agencies would be a priority compared to more serious offences
involving child pornography.

141.    A
primary concern of any options for reform will be the jurisdictional limits of
any offence or measure. State based offences may be criticised for being unenforceable
given material uploaded on the websites may come from destinations far and
wide. As previously outlined, the Commonwealth currently provides a complaint
based scheme for the regulation of certain types of Internet content through
the Broadcasting Services Act 1992.
The nature of the Internet will always make enforcement problematic. A federal
approach would reduce these enforcement issues somewhat, however given the
Internet's international nature, and the extent of material uploaded overseas,
a federal approach will not necessarily be enforceable in all cases (especially
where the content is not illegal in the country of posting).

6
Options for Reform

142.    Reform
to address the issue of unauthorised photographs being used on the Internet may
or may not be desirable depending on the discussion and submissions received on
the above. It may be considered that there is no gap in existing law that
requires further regulation. However, if the submissions lead to the view that
this is a problem warranting action, then the following legislative and
non-legislative options may require exploration and comment.

143.    It
is noted that, at the time of writing, a review of the regulation of content
delivered over convergent communication devices is currently being undertaken
by the Commonwealth Department of Communications, Information Technology and
the Arts. This review is examining convergent devices, including 2.5G and 3G
mobile phones which are capable of receiving and delivering audio-visual
services. The review is looking at issues regarding the nature of commercial
content services, application of existing regulatory frameworks, and whether
existing approaches are adequate to restrict access to unsuitable content and
address issues of child safety. A report is expected to be issued in 2005.

6.1      Legislative reform options

6.1.1
Criminal law

6.1.1.1
Create a new criminal offence to deal with
unauthorised use of photographs of children

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.

Discussion Question:

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

6.1.1.2
Create a criminal offence to deal with voyeurism
where an expectation of privacy exists

148.    Similar
to the NZ, UK,
Canadian and US approaches to address voyeurism, a specific offence could be
created which applies to the taking and publishing of voyeuristic images which
do not fall within existing offences. Consideration would also need to be given
to the issues of destruction and forfeiture.

149.    The
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. The offence could specifically include (but
not be limited to) visual images of sexual organs, pubic area, buttocks,
breasts, as well as images taken under a person’s clothing where they
would reasonably expect privacy i.e. up-skirting.

150.    It
is noted that this option does not specifically address the South Bank and
school boys situations as there is less likely to be an expectation of privacy
given they were in public and were not engaged in what would likely be
considered private activities. However, this option would provide a dedicated
offence to deal with ‘upskirting’ and the like which may not be
comprehensively addressed by existing offences.

6.1.1.3
Clarify existing RC classification for the
purposes of online content regulation

151.    As
discussed earlier, the National Classification Scheme already provides for the
Classification Board to classify offensive material involving children.
Schedule 5 of the BSA then permits the ACMA to take action to remove this
material in some circumstances.

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.

153.    It
is difficult to suggest any reform to the National Classification Code when it
was not utilised in the instances that led to this discussion paper. In
particular, it has been noted earlier that the RC classification is already
very broad in respect of capturing offensive images of children.

154.    However,
a small gap has arisen regarding the classification of Internet content in
respect of images of children and website links. As previously discussed,
currently the text or image of a link itself on the page containing the
child’s image would be required to be offensive. To address this issue,
provision could be made to specifically allow the Classification Board to take
into account this slightly broader ‘context’ in determining whether
it is a depiction of a child likely to offend a reasonable adult.

155.    It
is noted that 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.

6.1.1.4
Take down notices

156.    If
a new offence (6.1.1.1 or 6.1.1.2) is the preferred approach there will need to
be a mechanism for removal of the images in question from the Internet. As
previously outlined Schedule 5 of the Commonwealth Broadcasting Services Act 1992 regulates certain aspects of the
Internet industry. Under this legislation an Internet Content Host must comply
with the various 'take down' notices as soon as practicable, or in any event by
6pm the next business day. A person is guilty of an offence if they contravene
the online provider rules (i.e. take down notice). The penalty is 50 penalty
units. The take down notice approach is only relevant to material stored on
servers located in Australia.

6.1.2
Civil law

6.1.2.1
Dutch ‘reasonable interests’
approach

157.    Central
to the Dutch approach is the 'reasonable interests of the person shown in the
portrait'. The Dutch Copyright Act provides that the publication of a portrait
without commission is not permitted if this would be contrary to the reasonable
interests of the person shown in the portrait.

158.    While
the Dutch approach is not considered appropriate in the context of Australian
copyright law, the central idea of a persons ‘reasonable interests’
could be adopted in another form. For example, some jurisdictions have bodies
which oversee children’s rights (i.e. Commissioner for Children or
similar) which may be able to adopt the role of protector of a child’s
reasonable interests regarding the use of unauthorised photographs. The
child’s ‘reasonable interests’ would encompass protecting the
child from exploitation. However, it is noted that a ‘reasonable
interests’ test could equally be applied to adults as well as children.

Discussion
Question:

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

6.2      Non
legislative reform options

6.2.1
Education campaign

159.    This
discussion paper has highlighted that an existing scheme of online regulation
which utilises the National Classification Code already exists to catch images
of children a reasonable adult would be likely to consider offensive. As such,
an education campaign could be used to increase community and police awareness
of the existing mechanisms for making complaints about Internet content with an
emphasis on the fact that an image of a child may be ‘prohibited
content’ (RC) without necessarily being sexually explicit or involving
nudity.

160.    A
further education campaign focusing on the appropriate use of mobile phone
cameras may also be beneficial in light of the increase in ownership and use of
small digital cameras.

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.

7
Reference List

Cases

ABC v
Lenah Game Meats Pty (2001) 54 IRR 161.

Aubry v
Editions Vice-Versa [1998] SCR 591.

Dow Jones
v Gutnick [2002] HCA 56.

Ettingshausen v ACP (1991) 23 NSWLR 443.

Giller v
Procopets [2004] VSC 113.

Kalaba v
Commonwealth of Australia [2004] FCA 763.

Victoria Park Racing and Recreational
Grounds Co Ltd v Taylor
(1937) 58 CLR 479.

Newspaper
articles

Michelle Rose, ‘Pools outlaw mobiles amid
privacy fears’, Herald Sun, 11 June 2003.

‘Parents warned over online beach
photos’, The Age, 27 January
2005.

‘Schoolboys counselled on net
pics’, MX Newspaper, 21 February 2002.

‘Teen put on gay site may lead to camera
ban’, Herald Sun, 3 April 2002,
p 25.

USA:
Vic gay website containing Melbourne
schoolboys withdrawn’, Australian Associated Press, 22 February 2002.

‘Vic-Police powerless to act on gay
website containing schoolboys’ Australian Associated Press, 22 February
2002.

Journal
articles

Caldwell J, ‘Protecting Privacy Post
Lenah: Should the Courts Establish a new Tort or develop breach of
confidence?’, (2003) 26 UNSW Law
Journal (No 1) 90 at 124.

Kirby M, '25 years of evolving information
privacy law', (2003) FOI Review (No
105).

Reports

New
Zealand Law Commission, Intimate Covert Filming Study Paper (2004).

Internet

United Nations, Initial reports of States parties due in 1997 : Netherlands (1997)
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CRC.C.51.Add.1.En?OpenDocument
at 7 July 2005.

Appendix 1: Table
of legislation

VIC Legislation

Section

Offence

Application

Surveillance Devices Act 1999 (Vic)

S 7

Use an optical surveillance device (such as a camera or
mobile phone camera) to record visually a 'private activity' to which the
person is not a party, without their consent.

The incident involving school boys rowing was not assisted
by this offence as rowing outdoors in a public place could not be considered
a “private activity”. The Act provides that an activity carried
on outside a building is not a “private activity”.

S 11

Communicate or publish a recording of a 'private activity'
made with an optical surveillance device.

As above

Crimes Act
1958 (Vic)

S 21A

Stalk a person (eg where in taking photographs the
offender engages in a 'course of conduct').

Limited application as requisite intention of causing
physical or mental harm to the victim or of arousing apprehension or fear in
the victim is unlikely to be present.

S 68-70

Produce, procure or possess 'child pornography' (i.e. a
film, photograph or publication depicting children under 18 (or who appear
under 18) either engaging in sexual activity, or depicted in an indecent
sexual manner or context.

Child pornography offences would have limited application
as the image of the minors (or context) would need to be
“indecent”.

Classification (Publications, Films and Computer Games)
Enforcement Act 1995 (Vic)

S 57A

Use an online information service to publish, transmit etc
objectionable material that 'describes or depicts a… minor… in an
indecent sexual manner or context'

As above.

Summary Offences Act 1966

S 17

Any person who is in or near a public place and behaves in
a riotous indecent offensive or insulting manner is guilty of an offence.

For this offence to apply to the act of
‘taking’ unauthorised photographs, the behaviour must be
‘riotous indecent offensive or insulting’.

NSW Legislation

Section

Offence

Application

Summary Offences Act 1988  (NSW)

Part 3B

Any person who films, or attempts to film, another person
to provide sexual arousal or sexual gratification, whether for himself or
herself or for a third person, where the other person:

(a) is in a state of undress, or is engaged in
a private act, in circumstances in which a reasonable person would
reasonably expect to be afforded privacy, and

(b) does not consent to being filmed,

is guilty of an offence.

The incident involving school boys rowing was not assisted
by this proposed offence as it is unlikely rowing in a public place could be
considered a 'private act’.

Summary Offences Act 1988 (NSW)

S 4(1)

Offensive Conduct - A person must not

conduct himself or herself in an offensive manner in or
near, or within

view or hearing from, a public place or a school.

Crimes Act
1900 (NSW)

S 562AB

Stalk or intimidate with the intention of causing the
other person to fear physical or mental harm.  ‘Intimidate’ means conduct
amounting to harassment or molestation or … any conduct that causes a
reasonable apprehension of injury to a person …

Limited application - as requisite intention of causing
physical or mental harm to the victim, or of arousing apprehension of fear in
the victim - is unlikely to be present.

S 91G

Produce or disseminate or possess child pornography
(material that depicts

or describes, in a manner that would in all the
circumstances cause offence

to reasonable persons, a person under (or apparently
under) the age of 16

years: (a)
engaged in sexual activity, or (b)  in a sexual context, or (c)

as the victim of torture, cruelty or physical abuse
(whether or not in a

sexual context)).

The school boys incident was not considered child
pornography as the image of the minors or context within the image was not
indecent. Also many of the boys would have been between 16-18 years of age.

Classification (Publications, Films and Computer Games)
Enforcement Act 1995 (NSW)

S 6

Sale
or public exhibition of unclassified, RC or X films prohibited.  Note that images on a computer hard
drive meet the definition of ‘film’.  Question whether the availability of
material on the Internet meets the definition of ‘public
exhibition’.

As above.

Queensland
Legislation

Section

Offence

Application

Invasion of Privacy Act 1971 (QLD)

S 43

Prohibits a third party from using a listening device to
overhear, record, monitor, or listen to a private conversation. (Some limited
exceptions).

No application to photographs or visual recordings (except
the sound component of the recording). Only listening devices are covered by
the Act, not visual surveillance.

Invasion of Privacy Act 1971 (QLD)

S 45

Prohibits party to the conversation who used a listening
device from communicating or publishing any record of the conversation.
(Exceptions include with consent, public interest etc).

As above

Criminal Code (QLD)

S 210(1)(f)

Indecent treatment of children under 16 – without
legitimate reason takes any indecent photograph or records, by means of any
device, any indecent visual image of a child under the age of 16 years.

Requires the image to be “indecent”.

Criminal Code (QLD)

S 218A

Using internet etc. to procure children under 16 - using
electronic communication with intent to procure a person under the age of 16
years, or a person the adult believes is under the age of 16 years, to engage
in a sexual act, or expose, without legitimate reason, a person under the age
of 16 years, or a person the adult believes is under the age of 16 years, to
any indecent matter.

Requires either intent to procure child to engage in
sexual act; or expose child to “indecent matter”.

Criminal Code (QLD)

S 228

Obscene publications and exhibitions –knowingly, and
without lawful justification or
excuse publicly sells, distributes or exposes for sale any obscene
book or other obscene printed or written matter, any obscene computer generated
image or any obscene picture, photograph, drawing, or model, or any other
object tending to corrupt morals.

Higher penalties apply to material depicting a child under
16 or under 12.

Requires the material to be “obscene”.

Criminal Code (QLD)

Sections 228A to 228D

New child exploitation material offences - involving a
child under 18 in the making of child exploitation material, making child
exploitation material, distributing child exploitation material and
possessing child exploitation material

To be “child exploitation material” the
material must, in a way likely to cause offence to a reasonable adult,
describe or depict someone who is, or apparently is, a child under 16 years
–

In a sexual context, including for example engaging in a
sexual activity; or

In an offensive or demeaning context; or

Being subjected to abuse cruelty or torture.

Defences exist for material that is classified other than
RC.

Criminal Code (QLD)

S 359B

Stalking (i.e. conduct that is intentionally directed at
another person and is engaged in on any 1 occasion if the conduct is
protracted or on more that 1 occasion).

Conduct includes – watching a person; contacting a
person in any way (through use of any technology); watching a place where a
person lives work or visits; and an intimidating, harassing or threatening
act against a person, whether or not involving violence or a threat of
violence.

The conduct must cause the stalked person apprehension or
fear, reasonably arising in all the circumstances, of violence to or against
property of the stalked person or another person; or must cause detriment,
reasonably arising in all the circumstances, to the stalked person or another
person.

Detriment includes – apprehension or fear of
violence; serious mental or psychological or emotional harm; prevention or
hindrance from doing an act lawfully entitled to do; or compulsion to do an
act lawfully entitled

to abstain from doing.

Summary Offences Act 2005 (QLD)

S 6

Public nuisance - A person commits a public nuisance
offence if—

(a) the person behaves in—

(i) a disorderly way; or

(ii) an offensive way; or

(iii) a threatening way; or

(iv) a violent way; and

(b) the person’s behaviour interferes, or is likely
to interfere, with the peaceful passage through, or enjoyment of, a public
place by a member of the public.

It is not necessary for a person to make a complaint about
the behaviour of another person before a police officer may start a
proceeding against the person for a public nuisance offence.

Requires the person’s conduct to be
“offensive” or “threatening”, and to be likely to
interfere with public enjoyment of a public place. While it may have
application to someone openly photographing children in a public place; it
would probably not apply where the filming was surreptitious/covert, i.e.
where the subject did not know they were being filmed.

Classification
Acts - Offences relating to the production, sale and possession of
“child abuse” material are contained in the Classification of
Computer Games and Images Act 1995, the Classification of Films Act 1991 and
the Classification of Publications Act 1991.

Various sections in 3 Acts

“Child abuse” material means any photographs,
films, publications or computer generated images which describe or depict a
person who is or appears to be under 16 years, in a way that is likely to
cause offence to a reasonable adult. It is not necessary for the child to be
depicted as engaging in sexual activity.

Material must be likely to cause offence to a reasonable
adult.

ACT Legislation

Section

Offence

Application

Crimes Act 1900 (ACT)

S 35

Stalking – person must not stalk with intent to
cause apprehension, fear, harm or harass.

The stalking provisions have limited application because
the offence requires the element of intent and the person must be aware that
they are being stalked

S 60

Act of indecency without consent – to find the
offence a person must commit an act of “indecency”

Limited application as the offence requires an act of
indecency to be committed.  (In
the incident involving the schoolboys rowing there was no act of indecency to
find the offence.

S 61

Acts of indecency with young people – a person must
not commit an act of indecency with (a) a person under the age of 16.

As in s 60 the offence requires an act of indecency to
find the offence.  In addition the
offence is only applicable to children.

S 65

Possession of child pornography – a person knowingly
has in his or her possession a film, photograph, drawing audiotape, videotape
or any other thing depicting a young person engaged in an act of a sexual
nature….a depiction or representation that would offend a reasonable
adult person.

The incident of the school boys rowing was not child
pornography as the images did not depict acts of a sexual nature nor were the
images of a nature that would offend a reasonable person.

The offence only applies to people under the age of 16.

S 66

Using the Internet etc to deprave young people –
must not use electronic means to suggest to a young person to watch or take
part in an act of a sexual nature

The offence is concerned primarily with protecting minors
in relation to material of a sexual nature being sent over the Internet.

Classification (Publications, Films and Computer
Games)(Enforcement) Act 1995 (ACT)

Refers to indecency and child pornography.

As above

Public Baths and Public Bathing Act 1956 (ACT)

S 29

Offences in relation to public bathing conveniences
– creates an offence for loitering without reasonable excuse in a
public bathing convenience etc.

Limited application. Does not capture privacy issues or
issue of capturing a persons image when a person is using public baths.

TAS Legislation

Section

Offence

Application

Classification (Publications, Films and Computer Games)
Enforcement Act 1995 (Tas)

Ss 71-74

Make, reproduce, or possess 'child abuse product’
(i.e. a publication, film, or computer game describing or depicting a person
under 16 (or who appears to be under 16), whether or not engaging in sexual
activity, in a manner likely to cause offence to a reasonable adult.

Procuring a child to ‘be concerned with making a
child abuse product’ is also an offence.

The school boys incident might fit into this category
– the depiction of the boys in a particular context might be considered
offensive to a reasonable adult. However whether anyone could be charged
would depend on how ‘reproduction’ is interpreted. If
dissemination over the Web qualifies there might be a viable offence.
Provision not tested in this way.

Gap in relation to children 16-18 years of age.

Police Offences Act 1935

S 13

It is an offence to behave in an offensive or indecent
manner in a public place and to insult, or annoy any person.

Northern
Territory

Section

Offence

Application

Surveillance Devices Act

This Act only regulates the surveillance of private
activity

The images in question all appear to involve activities in
public places

Criminal Code

S125B

Possession of child abuse material – It is an
offence to possess, distribute, produce, sell or offer or advertise for
distribution or sale child abuse material. ‘Child abuse material’
means material that depicts describes or represents in a manner that is
likely to cause offence to a reasonable adult, a person who is or appears to
be a child – engaging in sexual activity; in a sexual offensive or
demeaning context….

Appears to have a wider application than offences relating
to “child pornography”.
Thus may apply in limited circumstances.  May depend on presentation or context
of image.  However it is unlikely
that simple images or boys engaging in sporting activities would be covered.

S 125C

A person who publishes an indecent article is guilty of an
offence.

An ‘indecent article’ means an article
that…depicts, describes or represents, in a manner likely to cause
offence to a reasonable adult – a person (whether or not engaged in
sexual activity) who is a child who has not attained the age of 16 years or
who looks like a child who has not attained that age…

"publish" would cover dissemination on the
internet.

This offence is wider than 125B in that it covers material
that is not necessarily sexual or abusive. This section may be applicable
depending on context.

S 125E

The new offence of "Using child for production of
child abuse material or pornographic or abusive performance" - Provides
that it is an offence to use, offer or procure a child or a person who
appears to be a child for the "production of child abuse material or for
a pornographic or abusive performance".

"Pornographic or abusive performance" covers
performances of

(a)engaging in sexual activity,

(b) in a sexual , offensive or demeaning context; or

(c) being subject to torture, cruelty or abuse,

that is likely to cause offence to a reasonable adult.

The application of this offence would also depend on the
context but it is very unlikely that it would apply to the situation of
school boy sporting activities.

S 132

Indecent dealing with child under 16 years, including
taking or recording indecent visual images or child under 16 years.

S 189

Stalking – eg repeatedly engaging in conduct such as
keeping a person under surveillance or loitering

Very limited application – there must be an
intention of causing mental or physical harm or arousing fear and the conduct
must actually have that result.

South Australia

Section

Offence

Application

Criminal Law Consolidation Act 1935

S 62

Child pornography is defined as material:

(a)                       that‑

(i)     describes or depicts a child engaging in sexual activity; or

(ii)     consists of, or contains, the image of a child or bodily parts of a child (or what appears to be the image of a child or bodily parts of a child) or in the production of which a child has been or appears to have been involved; and

(b) that
is intended or apparently intended—

(i) to
excite or gratify sexual interest; or

(ii) to
excite or gratify a sadistic or other perverted interest in violence or
cruelty;

Possessing, producing or disseminating child pornography
are offences.

Depending on the context in which the photographs are
placed there is the possibility that the South Australian definition of child
pornography could cover the situation of schoolboy rowers, if they were
placed in a context that indicated that they were intended to excite or
gratify sexual interest.

Criminal Law Consolidation Act 1935

S 63B

Creates an offence where “a person who acting for a
prurient purpose makes a photographic, electronic or other record from which
the image, or images of a child engaged in a private act may be reproduced,
is guilty of an offence”.

The offence is limited to filming a private act which
includes a sexual act, intimate bodily function, undressing, or nudity.  Specifically covers images of a
child.

Criminal Law Consolidation Act 1935

S 68

Prohibits the use of children in commercial sexual
services. Use includes employ, engage, cause or permit.

Limited to ‘commercial’ services provided for
payment, but does cover the use or display of the body...‘for the
sexual gratification of another’.

Summary Offences Act 1953

S 33

Makes it an offence to produce, sell, exhibit etc.
indecent or offensive material.

Limited to indecent and offensive material wouldn’t
cover innocent pictures being used for pornographic purposes.

Classification (Publication, Films and Computer Games) Act
1995

S 75C

Make available, or supply, by means of an on-line service
objectionable matter.

Limited to objectionable matter. Objectionable matter
means content of a film that is (or would be) classified X, or a film or
computer game that is classified RC, or an advertisement for either of the
above.

Summary Offences Act 1953

S 23

Indecent behaviour and gross indecency

23. (1) A person who behaves in an indecent
manner—

(a)
in a public place, or while visible from a public place, or in a police
station; or

(b)
in a place, other than a public place or police station, so as to offend or
insult any person,

is guilty of an offence.

Limited to a person behaving in an indecent manner, a
recent prosecution where someone had installed a camera device in a shower
didn’t test the evidence so it is unclear whether this provision would
catch such behaviour.

Summary Offences Act 1953

S 7

Offensive Behaviour

7. (1) A person who, in a public place or a police
station—

(a)
behaves in a disorderly or offensive manner; or …

is guilty of an offence.

Offensive behaviour has to take occur in a public place,
this could be problematic in circumstances where a camera is installed in a
private bathroom.

Commonwealth Legislation

Section

Offence

Application

Criminal Code

474.17

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.

The incident involving school boys rowing would only be
covered by this proposed offence, if the placing of these images on a gay
website was considered to be use of an Internet service in a way that is
offensive to reasonable persons.

474.19

New offence dealing with intentionally accessing or making
available Internet child pornography.

This proposed offence would not apply to the school boys
incident, because the definition will only cover images that are objectively
pornographic.

Classification (Publications, Film and Computer Games) Act
1995

Whole Act

Establishes a classification regime which works in
conjunction with State and Territory classification enforcement legislation.

Broadcasting Services Act 1992

Schedule 5, Online Services

Schedule 5 regulates online content by imposing
obligations on Internet Service Providers.  The regime is established in
conjunction with State and Territory laws and section 85ZE of the Crimes Act 1914 which prohibits the
improper use of carriage services.
Breach of the regime set out in Schedule 5 attracts a penalty of up to
50 penalty units.

WA Legislation

Section

Offence

Application

Censorship Act 1996

S 60

S 101

S 102

Sale, display or possession of "child
pornography" (i.e. an article that describes or depicts a person who is,
or who looks like, a child under 16 years of age (whether the person is
engaged in sexual activity or not.)

Use a computer service to
transmit, obtain possession of, or

demonstrate an article
knowing it to be "objectionable material" (child pornography; RC
material; promotion of crime or violence; necrophilia; bestiality etc.)

Use a computer service to
transmit or make restricted material available to a minor.

Criminal Code 1913

S 320(6)

S 321(6)

S 322(6)

A person who indecently records a child under 13 is guilty
of a crime and is liable to imprisonment for 10 years.

A person who indecently records a child of or over 13 and
under 16 is guilty of a crime and liable to the punishment in section 321(8).

A person who indecently records a child of or over 16 who
is under his or her care, supervision, or authority is guilty of a crime and
is liable to imprisonment for 5 years.

Surveillance Devices Act 1998

S 6

S 9

Use of an optical surveillance device (an instrument,
apparatus, equipment, or other device capable of being used to record
visually or observe a private activity)to record a “private
activity” without the consent of a person.

Communicate or publish a recording of a “private
activity” made with an optical surveillance device.

Many incidents would not be covered as they would not be
“private activities”.

Many incidents would not be covered as they would not be
“private activities”.

Appendix 2: Classification (Publications, Films and Computer
Games) Act 1995 (Commonwealth)

Section 11 -
Matters to be considered in classification

The matters to be taken into account in making a decision on
the classification of a publication, a film or a computer game include:

(a) the standards of morality, decency and propriety
generally accepted by reasonable adults; and

(b) the literary, artistic or educational merit (if any) of
the publication, film or computer game; and

(c) the general character of the publication, film or
computer game, including whether it is of a medical, legal or scientific
character; and

(d) the persons or class of persons to or amongst whom it is
published or is intended or likely to be published.

Appendix 3: National
Classification Code

The Classification Board and Classification Review Board
must make classification decisions in accordance with the National Classification Code (‘the Code’) which names
and broadly describes the classification categories for classifiable material.

The Guidelines for the
Classification of Films and Computer Games are a tool used by the Board to
assist them in applying the criteria in the Code by describing the
classification categories, and setting out the scope and limits of material
suitable for each category.

See www.oflc.gov.au for the Guidelines for the Classification of Films and Computer Games and
the Code. The Code is also set out in full below.

National
Classification Code

1.                Classification
decisions are to give effect, as far as possible, to the following principles:

(a)  adults should be able to read, hear and
see what they want;

(b)  minors should be protected from material
likely to harm or disturb them;

(c)  everyone should be protected from
exposure to unsolicited material that they find offensive;

(d)  the need to take account of community
concerns about:

(i)  depictions that condone or incite
violence, particularly sexual violence; and

(ii)  the portrayal of persons in a demeaning
manner.

Publications

2.                Publications
are to be classified in accordance with the following table:

Item

Description of publication

Classification

1

Publications that:

(a) describe,
depict, express or otherwise deal with matters of sex, drug misuse or
addiction, crime, cruelty, violence or revolting or abhorrent phenomena in
such a way that they offend against the standards of morality, decency and
propriety generally accepted by reasonable adults to the extent that they
should not be classified; or

(b) describe or
depict in a way that is likely to cause offence to a reasonable adult, a
person who is, or appears to be, a child under 18 (whether the person is
engaged in sexual activity or not); or

(c)  promote,
incite or instruct in matters of crime or violence

RC

2

Publications (except RC publications) that:

(a) explicitly depict
sexual or sexually related activity
between consenting adults in a way that is likely to cause offence to a
reasonable adult; or

(b) depict, describe
or express revolting or abhorrent phenomena
in a way that is likely to cause offence to a reasonable adult and are
unsuitable for a minor to see or read

Category 2
restricted

3

Publications (except RC publications and Category 2
restricted publications) that:

(a) explicitly depict
nudity, or describe or impliedly depict sexual or
sexually related activity between consenting adults, in a way that is likely
to cause offence to a reasonable adult; or

(b) describe or
express in detail violence or sexual activity between consenting adults in a
way that is likely to cause offence to a reasonable adult; or

(c)  are
unsuitable for a minor to see or read

Category 1
restricted

4

All other publications

Unrestricted

Films

3.                Films
are to be classified in accordance with the following table:

Item

Description of film

Classification

1

Films that:

(a) depict, express
or otherwise deal with matters of sex, drug misuse or addiction, crime,
cruelty, violence or revolting or abhorrent phenomena in such a way that they
offend against the
standards of morality, decency and propriety generally accepted by reasonable
adults to the extent that they should not be classified; or

(b) describe or
depict in a way that is likely to cause offence to a reasonable adult, a
person who is, or appears to be , a child under 18 (whether
the person is engaged in sexual activity or not); or

(c)  promote,
incite or instruct in matters of crime or violence

RC

2

Films (except RC films) that:

(a) contain real
depictions of actual sexual activity between consenting adults in which there
is no violence, sexual violence, sexualised violence, coercion, sexually
assaultive language, or fetishes or depictions which purposefully demean
anyone involved in that activity for the enjoyment of viewers, in a way that
is likely to cause offence to a reasonable adult; and

(b) are unsuitable
for a minor to see

X 18+

3

Films (except RC films and X 18+ films) that are
unsuitable for a minor to see

R 18+

4

Films (except RC films, X 18+ films and R 18+ films) that
depict, express or otherwise deal with sex, violence or coarse language in
such a manner as to be unsuitable for viewing by persons under 15

MA 15+

5

Films (except RC films, X 18+ films, R 18+ films and MA
15+ films) that cannot be recommended for viewing by persons who are under 15

M

6

Films (except RC films, X 18+ films, R 18+ films, MA 15+
films and M films) that cannot be recommended for viewing by persons who are
under 15 without the guidance of their parents or guardians

PG

7

All other films

G

Computer Games

4.                Computer
games are to be classified in accordance with the following table:

Item

Description of computer game

Classification

1

Computer games that:

(a) depict, express or
otherwise deal with matters of sex, drug misuse or addiction, crime, cruelty,
violence or revolting or abhorrent phenomena in such a way that they offend
against the standards of morality, decency and propriety generally accepted
by reasonable adults to the extent that they should not be classified; or

(b) describe or
depict in a way that is likely to cause offence to a reasonable adult, a
person who is, or appears to be, a child under 18 (whether the person is
engaged in sexual activity or not); or

(c)  promote,
incite or instruct in matters of crime or violence; or

(d) are unsuitable
for a minor to see or play

RC

2

Computer games (except RC computer games) that depict,
express or otherwise deal with sex, violence or coarse language in such a
manner as to be unsuitable for viewing or playing by persons under 15

MA 15+

3

Computer games (except RC and MA 15+ computer games) that
cannot be recommended for viewing or playing by persons who are under 15

M

4

Computer games (except RC, MA 15+ and M computer games)
that cannot be recommended for viewing or playing by persons who are under 15
without the guidance of their parents or guardians

PG

5

All other computer games

G

Appendix 4: International approaches to
voyeurism

Canada

Incidents involving voyeurism and modern technology have
received public attention and generated concern in Canada. In response, a Bill
containing an offence for voyeurism has been introduced into the House of
Commons. Clause 6 of the Bill C-20 inserts a new offence of voyeurism into Part
V (Sexual Offences) of the Criminal Code. The offence targets voyeurism as both
a sexual offence and a privacy offence. For instance, section 162(1)(c) will
make it an offence to “surreptitiously” observe or make a visual
recording of a person “in circumstances that give rise to a reasonable
expectation of privacy”, where that is done “for a sexual
purpose”.

Additionally, section 162(1) makes the same surreptitious
observation or recording an offence if the person being observed or recorded is
(a) in a place in which they can “reasonably be expected” to be
nude; to expose their genital organs, anal region or breasts; or to be engaged
in explicit sexual activity, or (b) in such a state or engaged in such activity
and the observation or recording is done for the purposes of seeing or
recording it. It is intended that voyeurism could be prosecuted as an offence
against privacy, whether undertaken for commercial profit, to harass the
complainant, or for some other non-sexual purpose.[35]

United
Kingdom

The UK Parliament has addressed the issue of voyeurism
through the Sexual Offences Act 2003.
A report entitled Setting the Boundaries:
Reforming the Law on Sex Offences[36]
proposed the offence after a number of instances of voyeurism causing
considerable distress were brought to the attention of Members of Parliament
and the police. The law offered no remedy unless the proceedings were recorded
and could be considered as indecent or obscene material. This report
recommended that there should be an offence of voyeurism where a person in the
interior of a building or other structure has a reasonable expectation of
privacy and is observed without their knowledge or consent.[37]
In response to that recommendation the Act creates the following new offence.

Section 67 (Voyeurism) of the Sexual Offences Act 2003
provides:

(1) A person commits an offence if-

(a) for the purpose of obtaining sexual gratification, he
observes another person doing a private act, and

(b) he knows that the other person does not consent to being
observed for his sexual gratification.

(2) A person commits an offence if-

(a) he operates equipment with the intention of enabling
another person to observe, for the purpose of obtaining sexual gratification, a
third person (B) doing a private act, and

(b) he knows that B does not consent to his operating
equipment with that intention.

(3) A person commits an offence if-

(a) he records another person (B) doing a private act,

(b) he does so with the intention that he or a third person
will, for the purpose of obtaining sexual gratification, look at an image of B
doing the act, and

(c) he knows that B does not consent to his recording the
act with that intention.

(4) A person commits an offence if he installs equipment, or
constructs or adapts a structure or part of a structure, with the intention of
enabling himself or another person to commit an offence under subsection (1).

(5) A person guilty of an offence under this section is
liable-

(a) on summary conviction, to imprisonment for a term not
exceeding 6 months or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term
not exceeding 2 years.

s 68 -Voyeurism: interpretation

(1) For the purposes of section 67, a person is doing a
private act if the person is in a place which, in the circumstances, would
reasonably be expected to provide privacy, and-

(a) the person's genitals, buttocks or breasts are exposed
or covered only with underwear,

(b) the person is using a lavatory, or

(c) the person is doing a sexual act that is not of a kind
ordinarily done in public.

(2) In section 67, "structure" includes a tent,
vehicle or vessel or other temporary or movable structure.

New Zealand

The New Zealand Law Commission’s study paper Intimate Covert Filming[38]
recommended that the following provisions be inserted in the Crimes Act 1961:

Making a voyeuristic recording

R1      It
is an offence for anyone to intentionally or recklessly:

(a) Make a visual recording of another person without the
knowledge or consent of that person when the person is in circumstances that
would reasonably be expected to provide privacy, and is:

·
nude or has his or her sexual organs, pubic
area, buttocks, or her breasts exposed or partially exposed; or is

·
engaged in explicit sexual activity; or is

·
engaged in an intimate bodily activity such as
using the toilet.

(b) Make a visual recording of another person without the
knowledge or consent of that person under that person’s clothing for the
purpose of viewing their sexual organs, pubic area, buttocks, breasts or
underwear in circumstances where it is unreasonable to do so.

The maximum penalty for this offence is three years’
imprisonment.

Publishing a voyeuristic recording

R2 it is an offence for anyone:

·
to print, copy, publish, distribute, sell,
advertise or make available a recording; or

·
to have possession of a recording for such
purposes-

Knowing that, or being reckless as to whether, the recording
was made in the circumstances described in paragraphs (a) or (b) of the offence
of making a voyeuristic recording, whether or not the recording was made
intentionally or recklessly.

The maximum penalty for this offence is three years
imprisonment.

Possession of a voyeuristic recording

R3 It is an offence for anyone:

to, without reasonable excuse, possess a recording –

knowing that the recording was obtained through the
commission of the offence of making a voyeuristic recording, or distributed
through the offence of publishing a voyeuristic recording.

The maximum penalty for this offence is twelve months’
imprisonment.

Destruction and forfeiture

R4 Upon conviction for any of the above offences, the Court
has the power to order that the images be destroyed and any equipment, goods,
or other thing used in the commission of the offence be forfeited to the Crown.

[1]
‘USA: Vic gay website containing Melbourne schoolboys withdrawn’, Australian
Associated Press, 22 February 2002; ‘Schoolboys counselled on net
pics’, MX Newspaper, 21
February 2002; Vic-Police powerless to act on gay website containing
schoolboys’, Australian Associated Press, 22 February 2002.

[2]
‘Teen put on gay site may lead to camera ban’, Herald Sun, 3 April 2002, p 25.

[3]
Michelle Rose, ‘Pools outlaw mobiles amid privacy fears’, Herald
Sun, 11 June 2003.

[4]
‘Parents warned over online beach photos’, The Age, 27
January 2005.

[5]
‘Topless photos prove costly’, Herald Sun, 2 December
2004.

[6]
Ettingshausen v ACP (1991) 23 NSWLR 443.

[7]
Australia
is a party to the International Covenant on Civil and Political Rights which is
attached as a schedule to the Commonwealth Human Rights and Equal
Opportunity Commission Act 1986.

[8]
'Private activity' means an activity carried on in circumstances that may
reasonably be taken to indicate that the parties to it desire it to be observed
only by themselves, but does not include (a) an activity carried on outside a
building; or (b) an activity carried on in any circumstances in which the
parties to it ought reasonably to expect that it may be observed by someone
else.

[9]
Section 3.

[10]
Part 3B, Summary Offences Act 1988 (NSW).

[11]
Whether the sexual arousal or sexual gratification was for the person filming,
or for a third person.

[12]
‘Topless photos prove costly’, Herald Sun, 2 December
2004.

[13]
The law defines 'Internet content' as information which is kept on a data
storage device and is accessed, or available for access, using an Internet
carriage service. But does not include ordinary electronic mail or information
that is transmitted in the form of a broadcasting service.  It may include material on the World
Wide Web, postings on newsgroups and bulletin boards, and other files that can
be downloaded from an archive or library.

[14]
(1937) 58 CLR 479.

[15]
(2001) 54 IRR 161 at 250.

[16]
[2003] QDC 151.

[17]
[2004] VSC 113.

[18]
[2004] FCA 763.

[19]
Caldwell J, ‘Protecting Privacy Post Lenah: Should the Courts Establish a
new Tort or develop breach of confidence?’, (2003) 26 UNSW Law Journal (No 1) 90 at 124.

[20]
New Zealand
Law Commission, Intimate Covert Filming
Study Paper (2004) at p 1.

[21]
Ibid, at p 13.

[22]
Ibid, at p 39.

[23]
United Nations, Initial reports of States
parties due in 1997 : Netherlands
(1997) http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CRC.C.51.Add.1.En?OpenDocument
at 7 July 2005.

[24]
Ibid.

[25]
Ibid.

[26]
Ibid.

[27]
Ibid.

[28]
Ibid.

[29]
Ibid.

[30]
Ibid.

[31]
Ibid.

[32]
[1998] SCR 591.

[33]
Kirby M, '25 years of evolving information privacy law', (2003) FOI Review (No 105) at 34.

[34]
[2002] HCA 56.

[35]
Legislative summary – Robin MacKay, Marilyn Pilon, Law and Government
Division January 2003.

[36]United
Kingdom Home Office, Setting the
Boundaries: Reforming the Law on Sex Offences (London: 2000).

[37]
Id, at Recommendation 55:

[38]
NZLC SP15