New laws are not necessarily the answer to counter the real threat pornography poses

Australia has a problem with pornography.

The Senate reported recently on the harm online pornography inflicts on young people. Additionally, as part of its response to domestic violence, the Turnbull government announced a range of strategies to combat the non-consensual sharing of intimate images, otherwise known as “revenge porn”.

But how real is the threat of pornography? And what are the most appropriate responses?

The threat posed by pornography

Our traditional policy responses are struggling to keep pace with rapid technological advancement and increasing use of social media networking. Research by analytics software provider Domo shows use of such platforms has increased dramatically in recent years; there are some 3.4 billion internet users in 2016.

A Senate committee found various studies that indicated that children have high rates of exposure to online pornography, and that these rates increase with age. One Australian study of 13-16-year-olds showed 93% of boys and 61% of girls reported exposure to pornography online.

The Burnet Institute noted:

The rise of the internet and social media means that pornography is more accessible, diverse and normalised than ever before.

The committee identified several potentially negative impacts as a result of this exposure – some of which flow into the broader issue of domestic violence.

In relation to revenge porn, one Australian study showed that 9.3% of Australians had nude or semi-nude images posted online or sent to others without permission.

Government responses to the threats posed by pornography

A government focus on pornography is not new. A previous Senate inquiry into revenge porn recommended new criminal sanctions, better training for police and improved education and awareness responses.

The New South Wales parliament also examined revenge porn. It recommended new avenues of civil redress for victims and more training for police.

The Turnbull government outlined three major strategies last week to deal with revenge porn. The policy response involved appointing an eSafety commissioner and developing an online reporting tool that will allow victims to report and get help in revenge porn cases.

The announcement also flagged the possible introduction of civil penalties for sharing revenge porn.

The third strategy talked to education and prevention in broad terms. There was little detail on how this was to be achieved, what funding was to be provided, and who would be responsible for design and delivery.

In regard to the broader issue of porn and its impact on young people, the Senate committee was unsure if policy intervention would be of use. It called for further research to develop an evidence base to support policy decisions.

New laws are not the answer

In regard to criminal sanctions for revenge porn, the government recognised the need for a nationally consistent approach. It was unclear if this meant the government was considering the introduction of new or specific laws for revenge porn, or more consistent use of existing laws.

The minister for women, Michaelia Cash, noted that at the federal level:

… there are already in place criminal laws … and there has been successful prosecution.

This federal offence makes it a crime to use a carriage service to menace, harass or cause offence. Despite this, there have been arguments for specific revenge porn laws, which have been introduced in many overseas jurisdictions.

But although there are already offences that cover acts of revenge porn, it appears prosecutions under these are rare – as Cash noted.

The creation of new offences may not the panacea it is held out to be. A baseline of evidence would need to be presented to show that current legislative offences present in Australian jurisdictions are ineffective in dealing with revenge-porn-related offences.

It must also be shown that any proposed new offences would be effective in tackling the current scheme’s perceived failings and not be simply window-dressing.

Investigating these matters is often difficult given the transnational nature of the offence and the anonymity of both the victim and the offender. The Northern Territory police noted problems in getting these matters to court:

… due to the difficulty in identifying the suspect and establishing their level of involvement, embarrassment of the victim and unwillingness to proceed with a formal complaint and be involved in the court process.

Queensland police were unable to identify any complainants from a website that was sharing images of females from 70 Australian schools. With no complainants, no action was taken.

Crime prevention is key to success

As with any crime, solutions are much more than just restricting behaviours through legislation. Crime prevention strategies such as education and awareness campaigns, both from government and private-sector stakeholders, should also be considered as part of any response.

Part of this education strategy should aim to ensure the community accepts that harm-minimisation and risk-mitigation strategies are part of a rational response to a crime problem.

This issue was highlighted when the Queensland Police Service (QPS) issued advice for parents in response to the school site case. It advised parents to:

… talk with their children openly about these matters and discuss the consequences of posting too much personal information, including your school, your age and your suburb online. Once this information is matched with a photo of you, then the possibilities are concerning.

The QPS was subsequently criticised for engaging in victim-blaming.

Yet it is not victim-blaming to engage in a valid discussion of crime-prevention measures. It is reasonable to suggest steps to people that they can take to mitigate becoming a victim of crime.

Identifying and educating groups at risk is also an important crime prevention strategy. For instance, young people are more likely to engage in sexting behaviour when unaware of the potential consequences.

Future directions

There needs to be more engagement and better training of law enforcement personnel on how to respond to and investigate offences involving online pornography in general.

Education and prevention strategies also need to be proactively undertaken with an emphasis on at-risk victim populations in an attempt to manage the impact of pornography.