Legal Guide to Image-Based Abuse Legislation in NSW


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DISCLAIMER: The use of technology-facilitated violence is a developing area of the law. The legal information, examples and scenarios contained in the guide are intended to explain the law as it stands at publication in general terms only and are not legal advice. They cannot be relied upon or applied by readers in their own cases. Each set of circumstances needs to be looked at individually. You should seek legal advice about your own particular circumstances.

Legal Guide to Image-Based Abuse in New South Wales

Image-based Abuse

Image-based abuse occurs when a nude, sexual or otherwise intimate image is taken or shared without the consent of the person featured in the image. It can also include the threat to share such an image whether or not the image is in fact shared, or whether or not the image in question even exists.

Image-based abuse is often referred to as ‘revenge porn’. This term is inaccurate, as in many cases the sharing or threat to share an intimate image is not motivated by ‘revenge’, and similarly the image need not be ‘pornographic’ to be intimate and private. Image based abuse can occur for a wide range of motives, such as a desire to control, punish, humiliate or otherwise harm the victim, financial incentives, a desire for social status or notoriety or many others, and can include many different kinds of videos or images.

This guide focuses on the image-based abuse of adults. The production, possession and dissemination of ‘child abuse material’ are criminal offences in NSW subject to a maximum penalty of imprisonment for 10 years. (Crimes Act 1900 (NSW) s 91H). ‘Child abuse material’ includes but is not limited to material which depicts or describes, in a way a reasonable person would find offensive, a person under the age of 16, or who appears to be or is implied to be under the age of 16, engaged in a sexual pose, or sexual activity; or material which depicts or describes the private parts of a person who is, appears to be or is implied to be, under the age of 16 (Crimes Act 1900 (NSW) s 91FB). Some regulations of similar material exist in the Criminal Code 1995 (Cth) (Divisions 273, 471B, 474D).

Image-Based Abuse Legislation in NSW

Crimes Act 1900 (NSW)

Division 15C of the Crimes Act 1900 (NSW) regulates the recording and distribution of intimate images.

Record an intimate image without consent (section 91P)

It is an offence to intentionally record an intimate image of another person without the consent of the person, and knowing the person did not consent to the recording or being reckless as to whether the person consented to the recording.

Maximum penalty: 100 penalty units or imprisonment for 3 years, or both.

For example: A person hides a camera in a bedroom and films a sexual encounter between himself and a partner, without obtaining the partner’s consent. The person has committed an offence under this section.

Distribute intimate image without consent (section 91Q)

It is an offence to intentionally distribute an intimate image of another person without the consent of the person, and knowing the person did not consent, or being reckless as to whether the person consented, to the distribution.

Maximum penalty: 100 penalty units or imprisonment for 3 years, or both.

For example: A person receives a nude photograph of his partner sent by text message to his phone. He forwards the photograph to several friends without obtaining the consent of his partner. The person has committed an offence under section 91Q, regardless of whether the image itself was taken with the consent of the victim.

Threaten to record or distribute intimate image (section 91R)

It is an offence to threaten to record or distribute an intimate image of another person without the consent of the other person, and intending to cause that other person to fear that the threat will be carried out.

A threat may be made by any conduct, whether explicit or implicit, conditional or unconditional. It is not necessary to prove that the other person actually feared the threat would be carried out, or that the intimate image which is the subject of the threat even exists.

Maximum penalty: 100 penalty units or imprisonment for 3 years, or both.

For example: A person tells his partner that she must perform certain sexual acts for him, and that if she refuses, he will post a video he has recorded of the two of them having sex to her Facebook page. The person has committed an offence under section 91R, regardless of whether he has in fact recorded such a video or plans to share it.

Contravene a court order to take reasonable action to remove, retract, recover, delete or destroy any intimate image recorded or distributed by the person (section 91S)

Under this section, a court that finds a person guilty of an offence against section 91P or 91Q may order the person to take reasonable actions to remove, retract, recover, delete or destroy any intimate image recorded or distributed by the person in contravention of the section within a period specified by the court.

A person who, without a reasonable excuse, contravenes an order made under this section is guilty of an offence.

Maximum penalty: 50 penalty units or imprisonment for 2 years, or both.

Unlike offences against sections 91P, 91Q and 91R, which are all indictable offences, an offence against section 91S is a summary offence.

For example: A person has been found guilty of an offence against section 91Q for posting naked photographs of his girlfriend to a range of websites. The court orders the defendant to destroy the photographs, and, within two weeks, to contact every website on which the photographs are hosted and request that they be removed. After two weeks, the defendant has failed to destroy the photos or contact the websites. The defendant has committed an offence under this section.

A prosecution of a person under the age of 16 years under any of the above sections requires the approval of the Director of Public Prosecutions.

Definitions

Section 91N defines the key terms related to the above offences.

‘Distribute’ includes send, supply, exhibit, transmit or communicate to another person, or make available for viewing or access by another person, whether in person or by electronic, digital or any other means.

‘Intimate image’ means:

  • 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
  • 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.

‘Private parts’ means:

  • a person’s genital area or anal area, whether bare or covered by underwear, or
  • the breasts of a female person, or transgender or intersex person identifying as female.

‘Engaged in a private act’ means:

  • in a state of undress, or
  • using the toilet, showering or bathing, or
  • engaged in a sexual act of a kind not ordinarily done in public, or
  • engaged in any other like activity.

‘Image’ means a still or moving image, whether or not it has been altered.

The definitions of ‘image’ and ‘intimate image’ when read together will mean that images or videos which have been altered to appear to show a person engaged in a private act, or a person’s private parts, are covered by the offences created by sections 91P, 91Q, 91R and 91S, even if the image does not in fact show what it appears to show.

For example: If a video created using ‘artificial intelligence technology’ which digitally imposes the face of one woman (person A) onto the body of another woman (person B) engaged in sexual activity and which as a result appears to show person A engaged in sexual activity (sometimes referred to as ‘deepfake videos’), is shared by someone without the consent of person A, the sharer will have committed an offence under this section.

Consent

Section 91O outlines what does and does not constitute ‘consent’ for the purposes of the above offences:

  • Consent must be given ‘freely and voluntarily’
  • Consent must be given to the recording of the image, and to each separate instance of distribution of the image
  • A person who consents to recording of an image on one occasion is not assumed to consent to subsequent recordings
  • A person who consents to distribution of an image on one occasion is not assumed to consent to subsequent instances of distribution of that image
  • A person who distributes an image of herself is not assumed to consent to any other distributions of that image
  • A person does not consent to the recording or distribution of an intimate image in the following circumstances:
    • The person is under the age of 16 or does not otherwise have capacity to consent (such as in the case of an intellectual disability)
    • The person is unconscious or asleep
    • The person ‘consents’ because of threats of force against or terror instilled in the person or any other person
    • The person ‘consents’ because they are unlawfully detained

The grounds on which it may be established that a person did not consent to the recording or distribution of an intimate image are not limited to the grounds specified in this section.

Criminal Code 1995 (Cth)

Using a carriage service to menace, harass or cause offence (Section 474.17)

A carriage service is defined in section 7 of the Telecommunications Act 1997 (Cth) as a service for carrying communications by means of guided and/or unguided electromagnetic energy. It includes:

  • telephone services
  • internet access services, and
  • Voice over Internet Protocol services (eg. Skype)

Under section 474.17 it is an offence to use a carriage service in a way that reasonable persons would regard as being menacing, harassing or offensive.

Maximum penalty: Imprisonment for 3 years.

Aggravated offences involving private sexual material – using a carriage service to menace, harass or cause offence (Section 474.17A)

It is an offence if the person commits the underlying offence (s 474.17) and the commission of that offence involves the transmission, making available, publication, distribution, advertisement or promotion of material and the material is private sexual material.

Maximum penalty: Imprisonment for 5 years.

For example: A man encourages a young woman on social media to send him intimate photos of herself. He then threatens to disclose the photos to the victim’s family and workplace. The man has committed an offence under section 474.17A.

It is a special aggravated offence if the person meets the elements of the aggravated offence above and prior to the commission of the underlying offence, received at least 3 civil penalty orders for contraventions of s 44B(1) of the Enhancing Online Safety Act 2015 (Cth).

Maximum penalty: Imprisonment for 7 years.

Private sexual material (Section 473.1)

This is defined as material that depicts a person who is, or appears to be, at least 18 years old and is engaged in, or appears to be in, a sexual pose or sexual activity in circumstances in which reasonable persons would have an expectation of privacy.

It also includes material that predominantly depicts a sexual organ or the anal region of a person who is, or appears to be, at least 18 years old or the breasts of a female person who is, or appears to be, at least 18 years old, in circumstances in which reasonable persons would have an expectation of privacy.

Commonwealth Civil Penalties Scheme – Enhancing Online Safety Act 2015 (Cth)

Enhancing Online Safety Act 2015 (Cth) prohibits the non-consensual sharing or threatened sharing of intimate images.

Posting an intimate image (Section 44B)

A person must not post, or make a threat to post, an intimate image of another person online (on a social media service, relevant electronic service or designated internet service) if either they or the person photographed is ordinarily a resident in Australia.

Maximum penalty: 500 penalty units.

The elements of the offence are not met where consent to the posting of the image by the first person was given.

It is also not an offence if the intimate image depicts or appears to depict an individual without a particular piece of clothing of religious or cultural significance and the perpetrator did not know that, due to the other person’s religious or cultural background, they consistently wore that piece of clothing whenever they were in public.

The eSafety Commissioner may issue a formal warning if a person contravenes s 44B (s 44C).

Intimate image (Section 9B)

Material is considered an intimate image of a person if it is a depiction of private parts:

  • It can be still or moving images
  • Depicts or appears to depict the person’s genital area or anal area (bare or covered by underwear) or if, the person is a female or a transgender or intersex person identifying as female, either or both of the person’s breasts in circumstances in which an ordinary reasonable person would expect privacy

Material is considered an intimate image of a person if it is a depiction of private activity:

  • It can be still or moving images
  • Depicts or appears to depict the person in a state of undress, using the toilet, showering, having a bath, engaged in a sexual act of a kind not ordinarily done in public or engaged in any other like activity in circumstances in which an ordinary reasonable person would expect privacy

Material is considered an intimate image of a person if it is a depiction of a person without attire of religious or cultural significance:

  • It can be still or moving images
  • Because of the person’s religious or cultural background, the person consistently wears particular attire of religious or cultural significance whenever they are in public
  • The image depicts or appears to depict the person without that attire and in circumstances in which an ordinary reasonable person would expect privacy

Consent (Section 9E)

Consent must be express, voluntary and informed. It does not include consent given by a child or by an adult who is in a mental or physical condition (temporary or permanent) that makes them incapable of giving consent or substantially impairs their capacity to give consent.

Complaints (Section 19A)

If a person has reason to believe that s 44B has been contravened with respect to an intimate image of themselves or someone on whose behalf they are authorised to act, the person may lodge a complaint with the eSafety Commissioner. If they are not able to identify the alleged perpetrator, they must state this in their complaint.

Objection notice (Section 19B)

If a person has reason to believe that an intimate image of themselves or someone on whose behalf they are authorised to act, has been provided online (a social media service, relevant electronic service or a designated internet service by an end-user) the depicted individual may lodge an objection notice with the eSafety Commissioner, regardless of whether they consented to the original posting of the image.

Removal notice given to the provider of a social media service, relevant electronic service or designated internet service OR to an end-user (Section 44D and 44E)

If an individual made a complaint or objection notice under s 19A or 19B and the relevant image was non-consensually posted online (by an end-user on a social media service, relevant electronic service or a designated internet service) the Commissioner may issue a written notice to the service provider or the end user. This removal notice will require that all reasonable steps be taken to ensure the removal of the intimate image from the service and to do so within 48 hours, or longer if the Commissioner allows.

If the relevant image is hosted by a hosting service provider, the Commissioner may give the hosting service provider a written notice to take reasonable steps to cease the hosting of the image (s 44F).

Compliance with removal notice (Section 44G)

A person must comply with a requirement under a removal notice to the extent that the person is capable of doing so.

Maximum penalty: 500 penalty units.

The eSafety Commissioner may issue a formal warning if a person contravenes s 44G (s 44H).

You can find more information online at [https://www.esafety.gov.au/image-based-abuse]

Gathering evidence to prove technology-facilitated stalking or abuse

Sometimes it can be difficult to prove technology-facilitated stalking or abuse. Some tips for gathering evidence to show that technology-facilitated stalking or abuse has occurred are:

  • Do not delete text messages, voicemail messages, photos
  • Try and save any evidence to a computer/USB flash drive
  • Use screenshots and save the image as the date & time it was taken. If taking screenshots of websites, always include the URL in the screenshot
  • Keep a diary or voice notes of incidents including dates and times
  • Consider giving police written permission to access your phone, computer, Facebook, email account etc. if a matter is being investigated

Note: certain other conduct in relation to technology-facilitated stalking or abuse may constitute a criminal offence. Please see the [Legal Guide to Surveillance Legislation in NSW] and the [Legal Guide on Relevant Criminal Offences in NSW] for further information.

2019-09-20T20:37:48+10:00