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This is a Bill, not an Act. For current law, see the Acts databases.
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TASMANIA
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CIVIL DIGITAL COMMUNICATIONS BILL 2017
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CONTENTS
1. Short title
2. Commencement
3. Interpretation
4. Malicious communications
5. Disclosing private sexual photographs, and films with intent to cause
distress
6. Meaning of 'private' and 'sexual'
7. Prohibition of harassment
8. Offence of harassment
9. Offence of stalking
10. Injunction to protect person from harassment
11. Putting people in fear of violence
12. Obtaining private sexual material for use
13. Take down orders
14. Effective date
15. Regulations
16. Repeal of Act
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(Brought in by Madeleine Ruth Ogilvie MP)
A BILL FOR
An Act to address the issues pertaining to persons who send or
deliver electronic communications, letters or other articles for the
purpose of causing distress or anxiety.
Be it enacted by Her Excellency the Governor of Tasmania, by and
with the advice and consent of the Legislative Council and House
of Assembly, in Parliament assembled, as follows:
1. Short Title
This Act may be cited as the Civil Digital Communications Act
2017.
2. Commencement
This Act commences on the day on which this Act receives the
Royal Assent.
3. Interpretation
In this Act, unless the contrary intention appears -
Electronic Communication includes -
(a) any oral or other communication by means of an
electronic communications network or process;
and
(b) any communication (however sent) that is in
electronic or other form.
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4. Offence Relating to Malicious Communications
(1) Any person who sends, or causes to be sent, to
another person -
(a) a letter, electronic communication or article
of any description, which conveys-
(b) a message or image which is indecent or
grossly offensive;
(c) a threat, or
(d) any article or electronic communication
which is, in whole or part, of an indecent or
grossly offensive nature,
is guilty of an offence if the purpose, or one of the
purposes, in sending it is that it should, so far as falling
within paragraph (a) or (b) above, cause distress or
anxiety to the recipient or to any other person to whom
the offence is intended that is or its contents or nature
should be communicated.
(2) A person is not guilty of an offence by virtue of
subsection (1)(c) above if it is shown -
(a) that the threat was used to reinforce a
demand made on reasonable grounds for
the purposes of legal action, and
(b) that there were reasonable grounds for
believing that the use of the threat was a
proper means of reinforcing the demand.
(3) In this section, references to sending include
references to delivering or transmitting, and to
causing to be sent, displayed, delivered or
transmitted and "sender" shall be construed
accordingly.
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5. Disclosing Private Sexual Photographs and Films with
Intent to Cause Distress
(1) It is an offence for a person to disclose a private sexual
photograph or film if the disclosure is made--
(a) without the consent of an individual who appears
in the photograph or film, and
(b) with the intention of causing that individual
distress.
(2) It is not an offence under this section for the person to
disclose the photograph or film to the individual
mentioned in subsection (1)(a).
(3) It is a defence for a person charged with an offence
under this section to prove that he or she reasonably
believed that the disclosure was necessary for the
purposes of preventing, detecting or investigating
crime.
(4) It is a defence for a person charged with an offence
under this section to show that--
(a) the disclosure was made in the course of, or with
a view to, the publication of journalistic material,
and
(b) he or she reasonably believed that, in the
particular circumstances, the publication of the
journalistic material was, or would be, in the
public interest.
(5) It is a defence for a person charged with an offence
under this section to show that--
(a) he or she reasonably believed that the
photograph or film had previously been disclosed
for reward, whether by the individual mentioned
in subsection (1)(a) or another person, and
(b) he or she had no reason to believe that the
previous disclosure for reward was made without
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the consent of the individual mentioned in
subsection (1)(a).
(6) A person is taken to have shown the matters
mentioned in subsection (4) or (5) if--
(a) sufficient evidence of the matters is adduced to
raise an issue with respect to it, and
(b) the contrary is not proved beyond reasonable
doubt.
(7) For the purposes of subsections (1) to (5)--
(a) "consent" to a disclosure includes general
consent covering the disclosure, as well as
consent to the particular disclosure, and
(b) "publication" of journalistic material means
disclosure to the public at large or to a section of
the public.
(8) A person charged with an offence under this section is
not to be taken to have disclosed a photograph or film
with the intention of causing distress merely because
that was a natural and probable consequence of the
disclosure.
(9) Meaning of "disclose" and "photograph or film" --
(1) The following apply for the purposes of section 4,
this section and section 6.
(2) A person "discloses" something to a person if, by
any means, he or she gives or shows it to the
person, transmits, displays by electronic means
or makes it available to the person.
(3) Something that is given, shown or made
available to a person is disclosed--
(a) whether or not it is given, shown or made
available for reward, and
(b) whether or not it has previously been given,
shown or made available to the person.
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(4) "Photograph or film" means a still or moving
image in any form that--
(a) appears to consist of or include one or
more photographed or filmed images, and
(b) in fact consists of or includes one or more
photographed or filmed images.
(5) The reference in subsection (4)(b) to
photographed or filmed images includes
photographed or filmed images that have been
altered in any way.
(6) "Photographed or filmed image" means a still or
moving image that--
(a) was originally captured by photography or
filming, or
(b) is part of an image originally captured by
photography or filming.
(7) "Filming" means making a recording, on any
medium, from which a moving image may be
produced by any means.
(8) References to a photograph or film include--
(a) a negative version of an image described in
subsection (4), and
(b) data stored by any means which is capable
of conversion into an image described in
subsection (4).
6. Meaning of "private" and "sexual"
(1) The following apply for the purposes of this
section.
(2) A photograph or film is "private" if it shows
something that is not of a kind ordinarily seen in
public.
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(3) A photograph or film is "sexual" if--
(a) it shows all or part of an individual's
exposed genitals or pubic area;
(b) it shows something that a reasonable
person would consider to be sexual
because of its nature, or
(c) its content, taken as a whole, is such that a
reasonable person would consider it to be
sexual.
(4) Subsection (5) applies in the case of --
(a) a photograph or film that consists of or
includes a photographed or filmed image
that has been altered in any way,
(b) a photograph or film that combines two or
more photographed or filmed images, and
(c) a photograph or film that combines a
photographed or filmed image with
something else.
(5) The photograph or film is not private and sexual
if--
(a) it does not consist of or include a
photographed or filmed image that is itself
private and sexual;
(b) it is only private or sexual by virtue of the
alteration or combination mentioned in
subsection (4), or
(c) it is only by virtue of the alteration or
combination mentioned in subsection (4)
that the person affected is shown as part
of, or with, whatever makes the photograph
or film private and sexual.
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7. Prohibition of Harassment
(1) A person must not pursue a course of conduct,
including a course of conduct as contained
in section 5 -
(a) which amounts to harassment of another,
and
(b) which he or she knows or ought to know
involves harassment of the other.
(2) A person must not pursue a course of conduct,
including a course of conduct as contained in
section 5 -
(a) which involves harassment of two or more
persons, and
(b) which he or she knows or ought to know
involves harassment of those persons, and
(c) by which he or she intends to persuade any
person not to do something that he or she
is entitled to do, or to do something that he
or she is not under any obligation to do.
(3) Subsections (1) and (2) do not apply to a course
of conduct if the person who pursued it shows -
(a) that it was pursued for the purpose of
preventing or detecting crime;
(b) that it was pursued under any enactment or
rule of law or to comply with any condition
or requirement imposed by any person
under any enactment, or
(c) that in the particular circumstances the
pursuit of the course of conduct was
reasonable.
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8. Offence of Harassment
A person who pursues a course of conduct in breach of section 7
is guilty of an offence.
9. Offence of Electronic Stalking
(1) A person is guilty of an offence if the person
pursues a course of conduct in breach of section 7
and the course of conduct is effected through
electronic means.
(2) For the purposes of section 1 a person's course of
conduct amounts to stalking of a person, if it is
effected through electronic means, if it amounts to
harassment of that person, the acts or omissions
involved are ones associated with stalking and the
person whose conduct it is ought to know that the
course of conduct amounts to harassment of the
other person.
(3) The following are examples of acts or omissions
which, in particular circumstances, are ones
associated with stalking, which may include but be
limited to -
(a) contacting or attempting to contact a
person by electronic means;
(b) publishing any statement or other material
relating to or purporting to relate to a
person or purporting to originate from a
person; and
(c) monitoring the use by a person of the
internet, social media platforms, the
person's data transmission, digital
information associated with a person or
any other form of that person's electronic
communications.
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10. Injunction to Protect Person from Harassment
Where there is an actual or apprehended breach of sections
4,5,6,7, 9 or 11 of this Act, the affected person may apply to the
Magistrates Court of Tasmania for an injunction restraining the
relevant person from pursuing that conduct.
11. Putting People in fear of Violence
(1) A person whose course of conduct, effected
through electronic means, causes another to fear
that violence will be used against him or her is
guilty of an offence if the person knows or ought to
have known that the course of conduct will cause
the other so to fear.
(2) It is a defence for a person charged with an
offence under this section to show that -
(a) his or her course of conduct was pursued
for the purposes of preventing or detecting
crime;
(b) his or her course of conduct was pursued
under any enactment or rule of law or to
comply with any condition or requirement
imposed by any person under any
enactment;
(c) the pursuit of his or her course of conduct
was reasonable for the protection of himself
or herself, or another, for the protection of
his or her property or another's property, or
(d) necessary for the reporting of a crime.
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12. Obtaining Private Sexual Material for Use
(1) A person commits an offence if:
(a) the person has possession or control of
material, obtained or used without consent,
or produces, supplies or obtains material of
a private sexual nature without consent;
and
(b) the person has that possession or control
and engages in that production, supply or
obtaining, with the intention that the
material be used by that person, or another
person, in committing an offence, or for
commercial purposes or for obtaining a
benefit.
(2) A person is not guilty of an offence under this
section if the person engaged in the conduct in
good faith, for the public benefit, or for the sole
purpose of assisting the Childrens e-Safety
Commissioner or other law enforcement agencies.
13. Take Down Orders
(1) A person may, upon application to the Magistrates
Court of Tasmania, seek and be granted an order
against another person, for the immediate removal
of material the subject of this act.
(2) A person's failure to remove material in
accordance with a take down order is an offence
under this act.
14. Effective Dates
The Act commences 30 March 2018.
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15. Regulations
(1) The Governor may make regulations as are
contemplated by, or may be necessary or
expedient for the purposes of this Act.
(2) Without limiting subsection (1) the regulations may
make provisions of a saving or transitional nature.
(3) The regulations may -
(a) be of general application or vary in their
application according to prescribed factor,
and
(b) provide that a matter or thing in respect of
which regulations may be made is to be
determined according to the discretion of
the Minister or a specified person or body.
16. Repeal of Act
This Act is repealed on the three hundred and sixty fifth day from
the day on which it commences.