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 abuse material’ are criminal offences in Victoria subject to a maximum penalty of 10 years’ imprisonment. ‘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 who is, or who appears or is implied to be, under the age of 18, engaged or apparently engaged in a sexual pose, or sexual activity; or material which depicts or describes the private parts of a person who is, or who appears to be or is implied to be, under the age of 18 (Crimes Act 1958 (Vic) Subdivision (8D) of Divisions 1 or Part I). Some regulations of similar material exist in the Criminal Code 1995 (Cth) (Divisions 273, 471B, 474D).
Image-Based Abuse Legislation in VIC
Summary Offences Act 1966 (Vic)
Visually capturing genital or anal region (section 41B)
It is an offence to intentionally visually capture an adult person’s genital or anal region in circumstances in which it would be reasonable for that other person to expect that his or her genital or anal region could not be visually captured, without the consent of that person, other than by accessing the internet or a broadcasting or datacasting service, or by a law enforcement officer acting reasonably in the performance of his or her duty.
Maximum penalty: imprisonment for 2 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.
Distribution of an image of genital or anal region (section 41C)
It is an offence for a person who has visually captured an image of an adult person’s genital or anal region (whether or not in contravention of section 41B) to intentionally distribute that image for a particular purpose without the consent of the person whose genital or anal region is visually captured, other than where the person being visually captured has expressly or impliedly consented to distribution of the image for a similar purpose, or the image is distributed by a law enforcement officer acting reasonably in the performance of his or her duty.
Another exception applies to this section:
- Where the subject is a child or other person incapable of giving consent; and
- The capturing was not made in contravention of section 41B; and
- A reasonable person would regard the image as acceptable.
Maximum penalty: imprisonment for 2 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.
Distribution of an intimate image (S 41DA)
It is an offence to intentionally distribute an intimate image of an adult person to a third party, if the distribution of the image is contrary to community standards of acceptable conduct, where the person has not expressly or impliedly consented, or could not reasonably be considered to have expressly or impliedly consented to the distribution.
Maximum penalty: imprisonment for 7 years.
For example: A person asks his girlfriend to send him naked photographs of herself. She is reluctant, but he convinces her by promising her that he will keep them to himself, and she complies. He then shares the photographs with a group chat of his friends without her consent. He has committed an offence under this section.
Definitions
Section 40 defines the key terms related to the above offences.
‘Consent’ means free agreement.
‘Distribute’ includes publishing, exhibiting, communicating, sending, supplying or transmitting to any other person, whether to a particular person or not, or making available for access by any other person, whether by a particular person or not
‘Genital or anal region’ means the genital or anal region of a person whether bare or covered by underwear.
‘Intimate image’ means a still or moving image that depicts:
- A person engaged in sexual activity; or
- A person in a manner of context that is sexual; or
- The genital or anal region or a person, or, in the case of a female person, the breasts.
‘Visually capture’ means capture moving or still by a camera or any other means in such a way that a recording is made of those images or those images are otherwise capable of being distributed.
‘Community standards of acceptable conduct’ includes standards of conduct having regard to the following:
- The nature and content of the image;
- The circumstances in which the image was captured;
- The circumstances in which the image was distributed;
- The age, intellectual capacity, vulnerability or other relevant circumstances of a person depicted in the image; and
- The degree to which the distribution of the image affects the privacy of a person depicted in the image.
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 VIC and the Legal Guide on Relevant Criminal Offences in VIC for further information.