The Development of Intimate Images Laws in a Digital Era

Published
10 July 2019

In an era of global technological development, there has been a change in the way that people, particularly children, live their everyday lives. Access to devices and social media platforms means that it is now easier than ever to share content in the digital world. Of course, this has immense positive implications, such as the increased accessibility of useful information and entertainment. However, there are inevitably drawbacks attached to the rise in the digital interconnectivity.

One such drawback is the use of devices and social media to share intimate and inappropriate images of others, either without the consent of the person in the image or where the person in the image is a child or young person. According to The Conversation, 23 per cent of Australians aged 16 to 45 have been a victim of image-based abuse. This may be motivated by control, intimidation, sexual gratification, financial gain and social status building. It can also occur in the context of two people having a falling out in a relationship, and one person subsequently sharing intimate images that they already had of the other person without that person’s consent. This situation has been termed ‘revenge porn’. Finally, ‘sexting’ (the ‘consensual’ sharing of intimate images) between children and young people has become relatively common. Research by the Office of the eSafety Commissioner in 2017 indicated that nearly one in three young people in Australia aged 14 to 17 had some experience of sexting, including sending, being asked for or showing nude or nearly nude images or videos of themselves or their peers.

As discussed in a previous School Governance article this is a complicated area for schools to monitor and manage. One of the aspects that schools must be aware of when they are educating students (and the school community) about this area is that the sharing of intimate images without the consent of the person in the image may result in criminal prosecution.

While this article focuses on the criminal law implications of sharing intimate images without consent, it is also essential for schools to be cognisant that accessing, possessing, creating or sharing sexualised images of children would also breach child pornography laws, even if the images were created and shared with the ‘consent’ of the parties involved. If intimate images of a child are discovered by a school, this could require a mandatory report to the relevant child protection agency and/or to police. The possible result is that a person who created, accessed, possessed or shared the image may be prosecuted and could receive a prison sentence and/or be added to a sex offenders register.

For children who share intimate images of themselves or others, this places them in a very difficult situation not only because of moral implications but because they may be held accountable by law.

Development of Intimate Images Laws

The issue of the sharing of intimate images without consent has become an issue of public concern and it has become necessary to seek to regulate this behaviour. As a result, most Australian states and territories have developed legislation in this area in recent years. Although there is significant communality between the laws of each jurisdiction, there are also some differences. It is important that people are aware of these differences and the general implications of the laws, given that sharing intimate images without consent could potentially result in a prison sentence.

As noted above, although this article focuses on legislative reforms around the non-consensual sharing of intimate images, we note that the sharing of intimate images of children – whether with or without consent – will result in breaches of other laws relating to child pornography.

Commonwealth

The Enhancing Online Safety Act (Non-Consensual Sharing of Intimate Images) Act 2018 (Cth) amends the Criminal Code Act 1995 (Cth) by inserting section 474.17A. This section criminalises the transmission, making available, publication, distribution, advertisement or promotion of “private sexual material” as defined in the Act, without the affected person’s consent.

Australian Capital Territory

The Crimes Act 1900 (ACT) was amended in 2017 to include provisions for sharing intimate images. Part 3A of the Act makes it a criminal offence for a person to:

  • distribute an intimate image of another person without the other person’s consent
  • distribute an intimate image of another person under 16 years old, even if the other person gives consent
  • threaten to capture or distribute an intimate image of another person.

The Act also provides some exceptions to these offences, such as when a law enforcement officer is acting within their duties. The Act also states that the court may order that a person guilty of these offences rectify their actions, such as by removing the intimate images. If the person does not rectify their actions, this is also an offence.

New South Wales

The Crimes Act 1900 (NSW) was also amended in 2017 to include provisions for sharing intimate images. Division 15C of the Act makes it a criminal offence for a person to:

  • record an intimate image of another person without the other person’s consent
  • distribute an intimate image of another person without the other person’s consent
  • threaten to record or distribute an intimate image of another person.

The Act also provides that the court may order that a person guilty of these offences rectify their actions, such as by removing the intimate images. If the person does not rectify their actions and they do not have a reasonable excuse for not doing so, this is also an offence.

Northern Territory

The Criminal Code Act 1983 (NT) was amended in 2018 to include provisions for sharing intimate images. Part VI, Division 7A of the Act makes it a criminal offence for a person to:

  • distribute an intimate image of another person without the other person’s consent
  • threaten to distribute an intimate image of another person without the other person’s consent.

The Act also provides some exceptions to these offences, such as when a law enforcement officer is acting within their duties. The Act says that the court may order that a person guilty of these offences rectify their actions, such as by removing the intimate images. If the person does not rectify and knows that this will result in non-compliance with the court order, this is also an offence. Furthermore, the Act states that the consent of the Director of Public Prosecutions is needed to prosecute a child under these provisions.

Queensland

The Criminal Code Act 1899 (Qld) was amended in 2018 to include provisions for sharing intimate images. Chapter 22 of the Act makes it a misdemeanour for a person to:

  • distribute an intimate image of another person without the other person’s consent
  • distribute prohibited visual recordings of another person without the other person’s consent
  • threaten to distribute an intimate image or prohibited visual recordings of another person without the other person’s consent.

The Act also provides some exceptions to these offences, such as when a law enforcement officer is acting within their duties. The Act says that the court may order that a person guilty of these offences rectify their actions, such as by removing the intimate images. If the person does not rectify their actions, this is also a misdemeanour.

It should be noted that those liable for offences under these provisions commit a “misdemeanour”, not a “crime”. In Queensland, both misdemeanours and crimes are “indictable” criminal offences (i.e. those in which a person must be prosecuted on an indictment, usually before a judge and jury in the District or Supreme Court, although also occasionally in the Magistrates Courts). However, police usually need to have a warrant before arresting a person suspected of having committed a misdemeanour while those suspected of committing a crime can be arrested without a warrant. Misdemeanours are generally considered less serious than crimes.

South Australia

The Summary Offences Act 1953 (SA) was amended in 2016 to include provisions for sharing intimate images. Part 5A of the Act makes it a criminal offence for a person to:

  • engage in humiliating or degrading filming, and distribute images obtained from this without the other person’s consent
  • distribute an invasive image of another person without the other person’s consent
  • engage in indecent filming, and distribute images obtained from this without the other person’s consent
  • threaten to distribute an invasive image or image obtained from indecent filming without the other person’s consent.

The Act also provides some exceptions to these offences, such as when a law enforcement officer is acting within their duties. The Act also says that a court may order the offender to forfeit anything used in relation to the image or film, including equipment.

Tasmania

There are currently no criminal laws specifically addressing intimate images in Tasmania, even though there were proposals in 2017.

Victoria

The Summary Offences Act 1966 (Vic) was amended in 2014 to include provisions for sharing intimate images. Sections 41DA and 41DB of the Act make it a criminal offence for a person to:

  • distribute an intimate image of another person without the other person’s consent, if the distribution is contrary to community standards of acceptable conduct
  • threaten to distribute an intimate image of another person without the other person’s consent, if the distribution will be contrary to community standards of acceptable conduct. The victim needs to believe that the perpetrator will carry out the threat.

Western Australia

Western Australia recently introduced and partially enacted the Criminal Law Amendment (Intimate Images) Act 2019 (WA), which amends the Criminal Code Act Compilation 1913 (WA) to include provisions for sharing intimate images.

Chapter XXVA of the Criminal Code Act Compilation 1913 (WA) makes it a criminal offence for a person to:

  • distribute an intimate image of another person without the other person’s consent
  • threaten to distribute an intimate image of another person without the other person’s consent.

The Act also provides some exceptions to these offences, such as when a law enforcement officer is acting within their duties. The Act also says that the court may order that a person guilty of these offences rectify their actions, such as by removing the intimate images. If the person does not rectify and they do not have a reasonable excuse for not doing so, this is also an offence.

Overall Importance of Intimate Images Laws

Most Australian states and territories have developed largely overlapping intimate images laws, with Western Australia being the most recent state to criminalise this behaviour. Although there are appropriate exceptions to these offences, the possibility of committing a criminal offence by breaching these laws highlights the seriousness of this issue for both students and schools in a digital era.

The Office of the eSafety Commissioner provides support for young people whose intimate images may have been shared without their consent.

The importance of parents and schools to educate children to not share ANY intimate images, regardless of context, cannot be underestimated.

About the Authors


Deb de fina-1Deborah de Fina

Deborah recently completed five years working with the Royal Commission into Institutional Responses to Child Sexual Abuse where she assisted the Royal Commission to establish the Private Session process and subsequently managed its legal aspects. Prior to working with the Royal Commission, Deborah had her own successful consulting practice where she specialised in the statutory child protection system, legal issues facing children and vulnerable people, and legal aid. She also spent more than nine years at Legal Aid NSW, as a child protection solicitor, Senior Solicitor and then Solicitor in Charge, Child Protection. Deborah holds a Juris Doctorate from the Columbia University School of Law, a Master of International Affairs from the Columbia University School of International and Public Affairs and a Diploma in Law from Sydney University.

Parisa Haider

Parisa Haider is a Legal Research Assistant at CompliSpace. She is currently studying a Bachelor of Law and Bachelor of Business (Economics) at the University of Technology, Sydney.

CompliSpace Media

CompliSpace is an Australian company that helps over 600 non-government schools across Australia with their governance, risk, compliance and policy management. What makes us different is that we monitor over 200 sources of legal and regulatory change to ensure our clients have the updated policies and tools they need to meet new requirements. We share that knowledge with the broader Education community via School Governance.