The issue of revenge pornography (‘revenge porn’) has received considerable attention
in the press, not only in Australia but worldwide.
Broadly, revenge porn refers to revealing or distributing sexually explicit images or
videos of a person over the internet without that person’s consent, usually with the
motive of causing humiliation, embarrassment and distress.
Whilst the conduct may occur in different circumstances and the motivations for
distributing the images vary, the perpetrator is often a former partner of the victim, who
undoubtedly suffers long-lasting and traumatic effects.
Australia has a matrix of civil and criminal laws relating to image-based conduct over the
internet. Although national laws presently exist to prohibit the use of a carriage service to
offend, harass or menace another person, these laws have not effectively or specifically
been utilised to target the issues associated with revenge porn.
The New South Wales Government has recently passed new legislation that makes
revenge porn a criminal offence.
New laws to criminalise revenge porn
The Crimes Amendment (Intimate Images) Act 2017 (NSW) creates new offences under
the Crimes Act 1900 (NSW) for the non-consensual recording, distribution of, and
threats to distribute, intimate images.
A person who intentionally records or distributes an intimate image without a person’s
consent, and knowing that person did not consent (or being reckless as to whether the
person consented), will be guilty of an offence.
A person who threatens to record or distribute an intimate image of another person
without the person’s consent, and with the intention of causing the person to fear that
the threat will be carried out, will be guilty of an offence.
Any type of conduct whether explicit or implicit may be considered a threat and the
subject image need not exist when the threat is made. The prosecution need not prove
that the person making the allegation actually feared that the threat would be carried out.
Persons convicted of any of these offences face a prison sentence of up to three years
and fines of up to $11,000 (both penalties may apply in any one case).
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Persons convicted of recording or distributing non-consensual intimate images may also
be ordered to remove, delete or destroy the images. A person who fails to do so without
reasonable cause may incur up to two year’s imprisonment and be fined up to $5,500.
These penalties are in addition to the penalties noted above.
What is an intimate image?
An image may be still or moving and an intimate image means:
(a) An image of a person’s private parts, or of a person engaged in a private act, in
circumstances in which a reasonable person would reasonably expect to be
afforded privacy, or
(b) An image that has been altered to appear to show a person’s private parts, or a
person engaged in a private act, in circumstances in which a reasonable person
would reasonably expect to be afforded privacy.
The inclusion of ‘altered’ images means that photoshopped images will also fall within
the definition, for example, where a person’s face is used with another person’s body to
portray that person in a sexual or intimate manner.
Private parts include the genital or anal area, whether or not covered by underwear, or
the breasts of a female or transgender or intersex person identifying as a female.
What is consent?
A person consents to the recording and / or distribution of an intimate image if he / she
‘freely and voluntarily agrees’ to the recording and / or distribution.
The Act makes it clear that a person does not consent to the recording and / or
distribution of an intimate image if:
- the person is under 16 years or does not have capacity to consent;
- the person does not have capacity to consent because he / she is unconscious or
asleep; - the person is threatened or forced to consent (whether a threat is made towards
the person or another person); - the person consents only because he / she is unlawfully detained
A person’s consent to the recording or distribution of an image on a particular occasion
does not, because of that consent, constitute consent to the recording or distribution of
that image or another image on a different occasion. Similarly, a person who consents to
the distribution of an image in a particular manner or to a particular person, cannot
because of that fact, be considered to have consented to the distribution of that or any
other image to another person or in any other manner.
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The circumstances in which a person does not consent is not exhaustive and may
include other grounds.
Defences for recording / distributing intimate images
A person will not be liable for an offence in the following circumstances: - the conduct was for genuine medical or scientific purposes;
- the conduct was performed by a law enforcement officer for genuine purposes;
- the conduct was required by a court or otherwise reasonably necessary for legal
proceedings; - a reasonable person would consider the conduct acceptable with regard to the
nature and content of the image, the surrounding circumstances, the age, intellect
and vulnerability of the person depicted in the image, the relationship between the
accused person and person in the image and the impact that the conduct has had
on the affected person’s privacy.
The provisions are aimed at capturing a range of activities that aim to harass, humiliate,
manipulate or demean another person.
Dealing with child offenders
It is anticipated that a very cautious approach will be taken to avoid criminalising young
people for irresponsible (rather than heinous) behaviour. Consequently, approval of the
Department of Public Prosecutions will be required to prosecute a child under 16 years
for an offence.
Conclusion
The internet provides an efficient means of producing and disseminating information –
once loaded images can leave a digital footprint and for the victims of revenge porn,
long-lasting torment.
Australia’s laws have been hard-pressed to keep up with technology and the matrix
between state and federal legislation to deal with illicit conduct over the internet is
arguably inconsistent and patchy.
The new laws give victims and potential victims of revenge porn better protection and
some redress in an area that has been notoriously difficult to regulate.
If you or someone you know wants more information or needs help or advice, please
contact us on 02 9191 9293 or email mail@rnlegal.org