The Law Handbook 2024

742 Section 7: Consumers, contracts, the internet and copyright Privacy laws The Privacy Act 1988 (Cth) (‘ Privacy Act ’) imposes Australian Privacy Principles ( APPs ) on the federal public sector and on private sector organisations. The APPs set the minimum standards for collecting and handling personal information by businesses and other private sector organisations. The APPs are relevant, for example, when collecting personal information from contributors to an online forum. There are exemptions for small businesses and media organisations acting ‘in the course of journalism’. NOTE Changes to the Privacy Act came into effect on 12 March 2014. The Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth) amended sections of the Privacy Act and included a set of new, harmonised privacy principles that regulate the collection, use, storage and disclosure of personal information by Australian Government agencies and some businesses. These new principles apply to the collection and use of personal information, including the online storage of personal information. Providing a privacy policy for your website as well as terms and conditions of use are the mechanisms commonly used to manage the various legal risks associated with online publishing. For more information on privacy laws, see Chapter 12.2: Privacy and your rights. Harassment Certain online communication practices, including giving a person unwanted attention or sending a person offensive material, may constitute harassment. Cyber-bullying and cyber-stalking Cyber-bullying is offensive, menacing or harassing behaviour that is conducted using technology. Examples of cyber-bullying include: • posting hurtful messages, images or videos online; • repeatedly sending unwanted messages online; • sending abusive texts and emails; • excluding or intimidating others online; • creating fake social networking profiles or websites that are hurtful; • participating in nasty online gossip and chat; and • any other form of digital communication that is discriminatory, intimidating, intended to cause hurt or make someone fear for their safety. Under section 474.17 of the Criminal Code Act 1995 (Cth) (‘ Criminal Code ’), it is a criminal offence to use the internet, social media or a telephone to menace, harass or cause offence. The maximum penalty for this offence is five years’ imprisonment. There are also stalking offences in each state and territory. Stalking involves a persistent course of conduct that is intended to make the victim feel fearful, uncomfortable, offended or harassed. When the conduct occurs online (e.g. by email or on social networking sites) or via text message, it is still a criminal offence. Stalking offences carry heavy maximum penalties. For more information, see ACORN (Australian Cybercrime Online Reporting Network) (www.cyber. gov.au/report-and-recover/report) . Victims of stalking can seek an intervention order against the stalker; see ‘Personal safety intervention orders for stalking’ in Chapter 4.4: Family violence. Revenge porn Revenge porn (also called ‘image-based abuse’) is the exploitative sharing of intimate or sexual material of a person without their consent, with the intention of causing that person harm. ‘Image-based abuse’ is the term preferred by academics and government agencies as not all perpetrators are motivated by revenge, and not all images are pornography (see R v Silva [2009] ACTSC 108 for discussion on what is ‘sexual material’). There are specific laws in Victoria and South Australia that criminalise the distribution of an intimate or ‘invasive’ image without consent. In both Victoria and South Australia, it is also a criminal offence to threaten to distribute an intimate or invasive image (see ‘Sexting’, below). Under Commonwealth law, the Criminal Code (s 474.17) – ‘using a carriage service to menace, harass or cause offence’ – has been used to respond to image-based abuse. The use of ‘private sexual material’ in such an offence constitutes an aggravated offence, increasing the maximum sentence from three to seven years imprisonment (s 474.17A). However, if the perpetrator does not demonstrate a clear intention to menace, harass or cause offence, the law is vague.