DISCLAIMER: The use of technology-facilitated abuse 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.
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 distribution of ‘child exploitation material’ are criminal offences in Queensland subject to a maximum penalty of imprisonment for 25, 20 and 20 years, respectively. ‘Child exploitation material’ includes but is not limited to material which depicts, or describes a person who is, or who appears to be, under 16, in a sexual or otherwise demeaning context (Criminal Code 1899 (Qld) ss 207A, 228A-D). Some regulations of similar material exist in the Criminal Code 1995 (Cth) (Divisions 273, 471B, 474D).
Image-Based Abuse Legislation in QLD
Criminal Code 1899 (Qld)
The Criminal Code 1899 (Qld) contains several offences covering image-based abuse behaviours.
Observations or recordings in breach of privacy (section 227A)
Under this section, it is an offence to observe or visually record another person in circumstances in which a reasonable adult would expect to be afforded privacy, when the other person is in a private place or engaging in a private act, without the other person’s consent.
Maximum penalty: imprisonment for 3 years.
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.
It is also an offence under this section to observe or visually record another person’s genital or anal region, whether covered by underwear or bare, in circumstances in which a reasonable adult would expect to be afforded privacy in relation to that region, without the other person’s consent.
Maximum penalty: imprisonment for 3 years.
For example: A person on a train uses a mobile phone to take a photo up the skirt of another passenger without her consent. The person has committed an offence under this section.
Distributing prohibited visual recordings (section 227B)
Under this section, it is an offence to distribute a ‘prohibited visual recording’ of another person, having reason to believe it is such a prohibited recording, without the other person’s consent.
Maximum penalty: imprisonment for 3 years.
For example: The person from the previous example, who takes a photo up the skirt of another passenger without her consent, sends that photo to a group of his friends. The person has committed an offence under this section.
Persons not criminally responsible under the previous sections (section 227C)
The following persons are not criminally responsible for an offence under the sections outlined above:
- A law enforcement officer acting reasonably in the course of his/her duties; and
- A person who is recording another person who is in lawful custody, and the first person is acting reasonably in the course of the performance of their duties relating to the second person’s lawful custody.
Definitions
The above sections, and section 207A, define the key terms related to these offences.
‘Visually record’ means record, or transmit, by any means, moving or still images of the person or part of the person.
‘Prohibited visual recording’ means a visual recording of a person in a private place, or engaging in a private act, or of the person’s genital or anal region, whether bare or covered, made in circumstances in which a reasonable adult would expect to be afforded privacy.
‘Private act’ means:
- showering or bathing; or
- using a toilet; or
- another activity when the person is in a state of undress; or
- intimate sexual activity that is not ordinarily done in public.
‘Private place’ means a place where a person might reasonably be expected to be
engaging in a private act.
‘State of undress’ means:
- the person is naked or the person’s genital or anal region is bare or, if the person is female, the person’s breasts are bare; or
- the person is wearing only underwear; or
- the person is wearing only some outer garments so that some of the person’s underwear is not covered by an outer garment.
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.
Online Safety Act 2021 (Cth)
The Online Safety Act 2021 (Cth) is legislation that attempts to keep Australians safe online and includes mechanisms to have abusive and harmful content removed from online.
The Act requires industry to develop new codes to regulate illegal and restricted content. The content that can be removed refers to the seriously harmful material including content that includes nudity and violence. Therefore it prohibits the non-consensual sharing or threatened sharing of intimate images.
Intimate image (Section 15)
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
Non-Consensual intimate image of a person (Section 16)
If an intimate image of a person is provided on a social media service (s13), a relevant electronic service (s13A) or a designated internet service (s14) and the person did not consent to the image being shared on that service then the intimate image is a non-consensual image of the person.
Consent (Section 21)
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.
Posting an Intimate Image (Section 75)
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 images 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 s75 (s76).
For example: A man posts nudes of his ex-partner on his Instagram account after they separate. He posts these up without her consent. The man has committed an offence under section 75.
Complaints (Section 32)
If a person has reason to believe that s75 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 33)
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 positing 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 77 and 78)
If an individual made a complaint or objection notice under s32 or s33 and the relevant image was non-consensually posted online (by an end-user or 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 24 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 (s79).
Compliance with removal notice (Section 80)
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 s80.
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 QLD and the Legal Guide on Relevant Criminal Offences in QLD for further information.