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Revenge Porn – Distribution Is A Criminal Offence

Can I be Prosecuted for Distributing Revenge Porn?

In this rapidly-advancing technological and social media age, the number of new criminal offences that have arisen relating to the misuse of the internet and social media has increased substantially in recent years. One behaviour, in particular, has resulted in Parliament enacting new laws: the publication and distribution of ‘revenge porn’.

What is Revenge Porn?

Revenge porn is the unauthorised public release, usually by an ex-partner, seeking revenge of intimate, indecent, or invasive images, videos, or other media produced during the course of a relationship, consensually or otherwise.

The definition of revenge porn has become more specific. The offence isn’t concerned with whether there is or was a relationship between the parties. It is only concerned with the illegal distribution of intimate images between an alleged offender and the victim of any ramifications from an unlawful distribution.

It’s important to realise that the distribution of material doesn’t actually need to be ‘revenge’ motivated. For example, police can charge a person if they use recorded images to blackmail or coerce a victim; if they trade or buy material without consent; use them or allow them to be used for sexual gratification purposes; or to use the recorded images for improper social purposes, such as by showing intimate photographs or videos of a spouse/partner or former spouse/partner to other people without the permission of the person whose image is being displayed.

The Rise of Revenge Porn

The issue first gained national attention in 2015, when intimate photographs and videos of over four hundred South Australian women were uploaded to a revenge pornography website without their knowledge or consent. The material was readily accessible to any person with access to, or membership of, the site.

The increase in revenge porn cases has been the direct result of the increased ability to create media content and to be able to upload it onto websites especially set up for that purpose. Such hosting sites as ‘Pornhub’ receive millions of visitors every day, which means that photos and videos posted without permission are reaching ever-widening audiences. Many of these sites also allow the uploaded material to be downloaded freely for further distribution.

In 2017, RMIT and La Trobe University surveyed 4,200 people for a research paper. The online survey revealed that approximately one in five people reported having had a nude or sexual photo taken of them without consent, and one in 10 reported having had a nude photo of themselves shared without their permission. Extrapolated across the entire population, these figures would represent tens of thousands of people who have been victimized by this offence.

Legislative Response

The NSW Office of the Director of Public Prosecutions acknowledges there is a gap in the existing legal framework. They have further stated that a ‘specifically-targeted criminal offence’ was needed to address this prevalent issue. During a parliamentary enquiry in 2015, former NSW Attorney General, Ms Gabrielle Upton pointed out that such images can have a devastating emotional and social effect on the person whose image is used unlawfully. She noted that such images can be used as a way to deliberately humiliate, control or harass the intended victim.

New Law Prohibiting This Behaviour

Every state and territory, apart from Northern Territory, Queensland and Tasmania have created specific ‘revenge porn’ legislation.

Revenge Porn Legislation

StateLegislationType of ImagePenalty 
FederalUsing a carriage service to harass or cause offence. Section 474.17, Criminal Code Act 1995 (Cth).N/AMaximum three years' imprisonment.
ACTNon-consensual distribution of intimate images. Section 72C, Crimes Act 1900 (ACT).Intimate image of a person:
(a) means a still or moving image, in any form —
(i) of a person's genital or anal region; or
(ii) for a female or a transgender or intersex person who identifies as a female — of the person's breasts; or
(iii) of the person engaged in a private act; or
(iv) that depicts the person in a sexual manner or context; and
(b) includes an image, in any form, that has been altered to appears to show any of the things mentioned in paragraph (a).
Maximum of three years' imprisonment.
Maximum of five years if the image is of a person under the age of 16 years.
NSWDistribute intimate image without consent, Section 91Q, Crimes Act 1900 (NSW).Intimate image means:
(a) 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;
(b) 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.
Maximum of three years' imprisonment.
SADistribution of invasive image/humiliating or degrading film, Section 26B-C, Summary Offences Act 1953 (SA).Invasive image of the person if it depicts the person in a place other than a public place:
(a) engaged in a private act; or
(b) in a state of undress such that —
(i) in the case of a female — the bare breasts are visible; or
(ii) in any case — the bare genital or anal region is visible.
Maximum of four years' imprisonment if the image is of a person under the age of 17 years.
Maximum of two years' imprisonment in any other case.
VICSection 41DA — Distribution of intimate image, Summary Offences Act 1966 (VIC).Image is contrary to community standards of acceptable conduct.Maximum of two years' imprisonment.
WARestraints on respondents, section 10G/61, Restraining Orders and Related Legislation Amendment (Family Violence) Act 2016 (WA).Not defined. Refers to ‘intimate personal images’.Maximum of two years' imprisonment.
TASNone
QLDNone
The Qld government has considered new law but nothing had been finalized by Dec 2017.
NTNone
The NT government has considered new law but nothing had been finalized by Dec 2017.

Under the current Commonwealth law, a person can be prosecuted for distributing revenge porn under the laws prohibiting the use of a carriage service to menace, harass or cause offence. The Prosecution must prove that the release of an image or video was undertaken in such a manner that a reasonable person would regard the release as being menacing, harassing, or offensive.

Under the new laws in New South Wales, a person may be prosecuted for distributing an intimate image without consent, under Section 91Q, Crimes Act 1900 (NSW). In South Australia, it is a criminal offence to even threaten to distribute an intimate image of a person without their consent.

Under these new laws, offenders potentially face a custodial sentence. The Courts treat these types of matters very seriously and issues of general and specific deterrence often loom large in these types of matters.

What offences can a distributor be charged with?

The new section of the Crimes Act came into effect in NSW in August 2017. In September 2017, a 20-year-old University student was charged with ‘threatening to distribute intimate content without consent, intentionally distributing images without consent, and procuring a child for unlawful sexual activity.

Police allege that Defendant was communicating with a 14-year-old girl online and convinced her to send intimate photographs of herself over social media. When he asked her to perform sexual acts and she refused, he threatened to publish the photographs online. If found guilty, the Defendant could face up to three years in prison and an $11,000 fine.

Further, an offender who fails to remove online material could face an additional two years in custody and a $5,500 fine.

Conclusion

First, people are strongly advised never to allow possibly compromising images to be taken, and/or should carefully secure all such images so that they cannot be accessed by unauthorized persons. Parents are also advised to discuss these offences with their children and to report any person grooming their children to police.

A person who is charged under the new revenge laws could find themselves embroiled in a highly stressful situation. If a person is charged with an offence under the new revenge porn legislation, they should contact the GTC Legal Hotline Lawyers on 1300 636 846 immediately for advice on how to proceed.

By Tina Domm, GTC Lawyers [ED:GCW]

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