14th Feb 2018, 10:26 AM – Senate Enhancing Online Safety (Non-Consensual Sharing of Intimate Images) Bill 2017 - in Committee - Burden of proof

The majority voted against an amendment introduced by Senator David Leyonhjelm (NSW), which means it was unsuccessful.

The amendment concerns the onus of proof. Liberal Senator Mitch Fifield (Vic) explained that:

Under the bill, consent to share an image must be express, voluntary and informed. The evidential burden of proof that consent was given—Senator Leyonhjelm was correct—lies with the person who shared the image in any civil penalty proceedings. Again, I emphasise that this doesn't relate to the sharing of images between two people; this relates to the sharing of those with a third party.

Senator Leyonhjelm wanted the burden of proving consent - or lack of consent, as the case would be - on the person whose image has been shared rather than the person who actually did the sharing. But the majority disagreed. Senator Fifield, as part of the explanation above, stated why the Government was voting against this amendment:

Given the serious impact that this conduct of sharing beyond the individuals involved has on the victim, the government is of the view that it's appropriate that the alleged perpetrator prove consent to share an image.

Amendment text

(5) Schedule 1, item 26, page 16 (lines 23 to 26), omit the note.

(6) Schedule 1, item 26, page 16 (after line 26), after subsection 44B(2), insert:

(2A) Despite section 96 of the Regulatory Powers (Standard Provisions) Act 2014, in proceedings for a civil penalty order against a person for a contravention of subsection (1), the person does not bear an evidential burden in relation to the matter in subsection (2) of this section.

What does the bill do?

The bill was introduced to:

• prohibit the posting of, or threatening to post, an intimate image without consent on a social media service, relevant electronic service or a designated internet service;
• establish a complaints and objections system to be administered by the eSafety Commissioner;
• provide the commissioner with powers to issue removal notices or remedial directions;
• establish a civil penalty regime to be administered by the commissioner; and
• enable the commissioner to seek a civil penalty order from a relevant court, issue an infringement notice, obtain an injunction or enforce an undertaking, or issue a formal warning for contraventions of the civil penalty provisions

Note that the bill does not criminalise sharing intimate images without consent. The prohibition it creates is a civil matter, not a criminal one.

Read more in the bills digest.