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 the Northern Territory
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 act of sharing or threatening 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, distribution, sale, offer or advertisement of ‘child abuse material’ are criminal offences in the Northern Territory subject to a maximum penalty of imprisonment for 10 years. ‘Child abuse material’ includes but is not limited to material which depicts, describes or represents a person who is, or who appears to be, a child engaged in sexual activity, or in a sexual, offensive or demeaning context (Criminal Code Act (NT) Schedule 1, section 125AB). Some regulations of similar material exist in the Criminal Code 1995 (Cth) (Divisions 273, 471B, 474D).
Image-Based Abuse Legislation in the NT
Criminal Code Act (NT)
Part VI, Division 7A of the Criminal Code Act (NT) regulates the distribution of intimate images.
Distribution of intimate image without consent (section 208AB)
It is an offence to intentionally distribute an intimate image of another person, if the other person did not consent to the distribution and the distributor was reckless as to that fact.
It is not an offence under this section to distribute an intimate image in the following circumstances:
- Distribution to only the person depicted in the image;
- Distribution by a law enforcement officer acting reasonably in the performance of his/her duty;
- Distribution for the purpose of reporting unlawful conduct to a law enforcement officer;
- When required by a court of reasonably required for the purpose of a legal proceeding;
- For a scientific, medical or educational purpose;
- By a person solely in the person’s capacity as an internet service provider, internet content host or a carriage service provider; or
- Distribution of an image of a child, or other person incapable of giving consent, in circumstances that a reasonable person would regard as acceptable (e.g. sharing a photograph of a naked newborn with family.)
This section also outlines several factors related to consent:
- Consent must be given freely and voluntarily.
- A person who consents to the distribution of an intimate image on a particular occasion, in a particular way, or to a particular person is not, by reason only of that fact, to be regarded as having consented to the distribution of that image or any other image on another occasion, in another way or to another person.
- A person who distributed an intimate image of the person is not, by reason only of that fact, to be regarded as having consented to any other distribution of the image.
Maximum penalty: imprisonment for 3 years.
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 this section.
Threaten to distribute intimate images (section 208AC)
Under this section, it is an offence to intentionally threaten to distribute an intimate image of another person, intending that the other person fear that the threat 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 carrying out the threat is even possible (for example, if the image does not exist).
Maximum penalty: Imprisonment for 3 years.
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 this section, regardless of whether he has in fact recorded such a video or plans to share it.
Fail to comply with a court order for rectification (section 208AE)
Under this section, a court that finds a person guilty of an offence against sections 208AB or 208 AC may order the person to take reasonable action to remove, retract, recover, delete or destroy any intimate image related to the offence within a stated period.
A person who knowingly and intentionally or recklessly contravenes an order made under this section is guilty of an offence.
Maximum penalty: Imprisonment for 2 years.
For example: A person has been found guilty of an offence against section 208AB for posting naked photographs of his girlfriend to a range of websites. In addition to sentencing him to a term of imprisonment for 2 years, 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.
The prosecution of a child for an offence against Division 7A must not be commenced without the consent of the Director of Public Prosecutions.
Note: The Criminal Code Act (NT)does not include an offence of ‘recording an intimate image without consent’.
Section 208AA defines the key terms related to the above offences.
‘Distribute’ includes publishing, exhibiting, showing, communicating, sending, supplying or transmitting the image, or making it available for viewing or access by another person, whether manually, electronically, digitally or in any other manner.
‘Image’ means a moving or still image in any form.
‘Intimate image’ means an image that depicts or has been altered to appear to depict:
- A person engaged in a sexual act of a kind not ordinarily seen in public;
- A person in a manner or context that is sexual;
- The genital or anal region of a person, whether bare or covered by underwear; or
- A breast, whether bare or covered by underwear, of a female person or of a transgender or intersex person who identifies as female.
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 the NT] and the [Legal Guide on Relevant Criminal Offences in the NT] for further information.