Revenge Porn Laws in Australia
The rise of the internet has also led to the proliferation of new forms of abuse and harassment.
Revenge porn is a particularly common form of ‘image based abuse’. The following outlines what is encompassed by the term, both NSW and federal offences, as well as relevant penalties and defences for this type of offending.
What is revenge porn?
‘Revenge porn’ refers to the dissemination of sexually explicit images or media without the subject’s permission.
This type of material is typically distributed by a former lover following the breakdown of a relationship, but it can also include media obtained and disseminated by a hacker or unrelated person.
Research has indicated that 1 in 10 have had nude photos of themselves shared without their permission, with men and women being victims at equal rates. Victims of revenge porn were also shown to experience moderate to severe depression and/or anxiety as a result of their experience.
Current revenge porn laws in Australia
Every State and Territory (except for Tasmania) has a stand alone criminal offence for revenge pornography, there are also Federal offences which may apply.
NSW revenge porn laws
Under NSW criminal law, the offence of recording an ‘intimate image’ a person without their consent is outlined under Section 91P of the Crimes Act 1900. section 91P of the Crimes Act 1900.
To establish the offence, the prosecution must prove beyond reasonable doubt that:
You intentionally recorded an intimate image of another person,
Without that person’s consent,
Knowing the other person did not consent, or being reckless as to whether they were consenting.
Section 91Q of the Crimes Act 1900 (NSW) outlines a related offence for anyone who intentionally distributes an intimate image of another person without their consent, or being reckless to the fact that the other person did not consent.
To “distribute” includes
Sending, supplying, exhibiting, transmitting or communicating to another person; or
Making available for viewing or access by another person.
Finally, section 91R prescribes the same penalty for anyone who threatens to record or distribute an intimate image without consent, intending the other person to fear the threat would be carried out.
Federal revenge porn laws
As many revenge porn offences occur over the internet, there is also the potential of a charge of utilising a carriage service to menace, harass or cause offence under Section 474.17 of the Criminal Code Act 1995– which is a piece of legislation that applies across Australia.
An aggravated version of the offence exists under section 474.17A if a person commits an offence under section 474.17 of the Act, and the offence involves the transmission, making available, publication, distribution, advertisement or promotion of private sexual material.
Moreover, the Enhancing Online Safety Act 2015 (Cth) established a civil penalty scheme empowering the eSafety Commissioner to remove images online and, in some cases, take action against the person who shared, or threatened to share, an intimate image without consent.
Victoria
Under VIC criminal law, a number of offensive are outlined in relation to use of an ‘intimate image’ without consent under Crimes Act 1958 (VIC). This includes:
Queensland
Under Qld criminal law, the offence non-consensual distribution of ‘intimate images’ is outlined under section 223 of the Qld Criminal Code.
Australian Capital Territory
Under ACT criminal law, the offence of non-consensual distribution of ‘intimate images’ is outlined under section 72C of the Crimes Act 1900 (ACT).
This becomes an ‘aggravated offence’ if it occurs within the context of family violence.
Northern Territory
Under NT criminal law, the offence non-consensual distribution of ‘intimate images’ is outlined under section 208AB of the NT Criminal Code.
South Australia
Under SA criminal law, the offence of non-consensual distribution of an ‘invasive image’ of another person knowing or having reason to believe they do not consent is outlined under section 26C of the Summary Offences Act 1953.
Western Australia
Under WA criminal law, the offence non-consensual distribution of ‘intimate images’ is outlined under section 221BF of the WA Criminal Code.
Understanding revenge porn laws in Australia
It’s important to understand the various terms which constitute elements of revenge porn laws across Australia.
An intimate image
Revenge porn laws are usually focused on ‘intimate’ images.
Under NSW revenge porn laws an ‘intimate image’ is defined as:
An image of 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, or
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.
A ‘private act’ includes depictions of someone in a state of undress, using the toilet, showering, bathing, engaged in a sexual act or engaged in any other like activity.
Private sexual material
The aggravated Federal offence applies to ‘private sexual material’.
The phrase “private sexual material” refers to material that:
Depicts a person who is, or appears to be, 18 years of age or older and who is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); and does so in circumstances that reasonable persons would regard as giving rise to an expectation of privacy; or
Material the dominant characteristic of which is the depiction of: a sexual organ or the anal region of a person who is, or appears to be, 18 years of age or older; or the breasts of a female person who is, or appears to be, 18 years of age or older where the depiction is in circumstances that reasonable persons would regard as giving rise to an expectation of privacy.
Sextortion
A particular type of revenge porn offending, known as ‘sextortion‘, involves a form of blackmail whereby a person – the perpetrator – threatens to share images of video of private parts of another – the victim – unless the latter submits to demands, such as giving money or engaging in directed conduct. The eSafety Commission reported that there were more than 1,700 sextortion complaints made in the first half of 2023, more than double that received the previous year.
Harass, menace or cause offence
Under Federal criminal laws, image sharing must be done to ‘harass, menace or cause offence’.
“Harassing” is not defined in the Act.
However, acts deemed as “menaces” are defined under section 138.2 as including:
A threat (whether express or implied) of conduct that is detrimental or unpleasant to another person;
A general threat of detrimental or unpleasant conduct that is implied because of the status, office or position of the maker of the threat.
“Offensive” is not defined under the However, section 473.4 states that in determining whether material is offensive, reference is to be had to:
the standards of morality, decency and propriety generally accepted by reasonable adults; and
the literary, artistic or educational merit (if any) of the material; and
the general character of the material (including whether it is of a medical, legal or scientific character).
What’s the penalty for revenge porn offences in Australia?
Penalties for NSW revenge porn offences
The maximum penalty for committing a revenge porn offence under the NSW criminal law is a fine of $11,000 and/or three years imprisonment.
Penalties for Federal revenge porn offences
The maximum penalty for committing federal revenge porn offences is 3 years imprisonment for the standard offence and 6 years imprisonment for the aggravated offence.
Penalties for Victorian revenge porn offences
The maximum penalties for the various Victoria revenge porn offences is 3 years imprisonment.
Penalties for Queensland revenge porn offences
The maximum penalty for this offence in Queensland is 3 years imprisonment.
Penalties for Australian Capital Territory revenge porn offences
The maximum penalty for the general offence in the ACT is 300 penalty units or 3 years imprisonment or both, whilst the aggravated offence carries a maximum penalty of 400 penalty units of 4 years imprisonment of both.
Penalties for Northern Territory revenge porn offences
The maximum penalty for this offence in Northern Territory is 3 years imprisonment.
Penalties for South Australian revenge porn offences
The maximum penalties for the offence in South Australia are:
$10,000 or imprisonment for 2 years for a general offence.
$20,000 or imprisonment for 4 years if the victim of the offence is under the age of 17 years.
Penalties for Western Australian revenge porn offences
The maximum penalty for this offence in Western Australia is 3 years imprisonment.
Defences to revenge porn laws
If you have been accused of a revenge porn offence, it is important to be aware that the prosecution must prove beyond reasonable doubt that you are actually responsible before you can be found guilty.
In addition to the prosecution having to prove each ‘element’ of the offence, it must prove beyond reasonable doubt that a legal defence such as duress, necessity or self-defence is unavailable where some evidence of the defence is raised.
Prominent revenge porn cases in Australia
A high profile case of revenge porn occurred in 2023, when at least 45 past and present AFL players had nude and intimate photos and videos shared across social media.
There has also been a rise in reports of ‘deep fake’ pornography being produced, which likely fall foul of revenge porn laws.
In 2018, a school teacher had to lodge a complaint with the eSafety Commission after becoming aware an image of her was being circulated among school students via the social media app Snapchat. The image used a picture of the teacher’s face, sourced from an electronic school newsletter, which was then photoshopped onto a woman’s naked body from a still photo taken from a pornographic movie.
Last updated on 27 Nov 2023
Source : https://www.sydneycriminallawyers.com.au/blog/revenge-porn-laws-australia/
Author :
Date : 2023-11-27 09:00:00
